New York: Worker's Tort Action Against Co-Worker for Horseplay Injury May Proceed to Trial

In an unusual case involving horseplay, a New York appellate court affirmed a state trial court's decision that had refused to grant summary judgment to a defendant-co-employee who had been sued by a plaintiff/co-worker following that co-worker's injuries at work. The appellate court acknowledged that the plaintiff had recovered workers' compensation benefits for the injuries. It stressed, however, that the plaintiff had alleged an intentional tort -- that as the plaintiff sat down in a chair at the workplace, the co-worker defendant pulled the chair out from under him, causing him to fall to the floor. The appellate court agreed that under these circumstances there was an issue of fact as to whether the defendant's conduct placed the plaintiff in imminent apprehension of harm. In New York and many other jurisdictions, the mere receipt of workers' compensation benefits does not constitute an absolute election of remedies that would foreclose the possibility of additional tort recovery.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Donnelly v. Christian, 2020 N.Y. App. Div. LEXIS 2328 (1st Dept., April 16, 2020)

See generally Larson’s Workers’ Compensation Law, § 111.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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