Thomas A. Robinson on Workers' Compensation and Horseplay: Hilton v. Martin

For good or ill, horseplay is a part of the American workplace.  Acknowledging that a worker is not always as focused as the machine he or she may manage, that levity has its place on the job, and that human beings are social creatures who release tension, show affection, or bid away idle time with jokes and foolish gestures, virtually all jurisdictions have determined that unless the playful activity is a substantial deviation from the employment, any injuries sustained as a result of such playful actions are generally compensable; they arise out of and within the course of the employment.  Correspondingly, since such injuries spring from the employment, the general rule is that the employer is not liable in tort for them. 

 A recent case from Virginia reminds us, however, that where injuries are serious and dependents are young, there is always the temptation to jettison established legal doctrine (here in the form of the exclusive remedy defense) and construct a separate theory upon which recovery might be had.  In Hilton v. Martin, et al., 275 Va. 176, 654 S.E.2d 572, 2008 Va. LEXIS 18 (January 11, 2008), the Supreme Court of Virginia held that an employer and several co-employees could not avoid potential liability for the death of an emergency medical services provider who was electrocuted by a co-employee who touched her with the paddles of an activated defibrillator.  Utilizing an assault theory of recovery and ignoring horseplay altogether, the high court reversed an earlier dismissal of the case by the trial court on exclusivity grounds.  This expert commentary analyzes the case, discusses relevant issues related to workers' compensation and horseplay, observes that the result of the supreme court’s decision may actually be much different than that intended, since the employer may now take advantage of a number of legal defenses which never would have come to play within the workers’ compensation system, and concludes that the most likely and unfortunate result of the decision may be to deny workers’ compensation benefits to deserving employees who are the victims of workplace horseplay.  

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