The Thin Line Between Horseplay and the Initial Physical Aggressor Defense

The Thin Line Between Horseplay and the Initial Physical Aggressor Defense

A recent California case with a wild factual scenario provides guidance on the important factual distinctions between horseplay and the initial physical aggressor defense

California Labor Code Section 3600 sets forth a number of conditions that must be met before an employer has liability for an injury. Labor Code Section 3600(a)(7) indicates that an employer will not have liability for an injury where the injury arises out of an altercation in which the employee is the “initial physical aggressor”. There are also those cases that establish that an employer will not have liability for an injury that is caused by “horseplay” or what is also referred to as “skylarking”. Recently, a panel of commissioners with the California Workers’ Compensation Appeals Board addressed the factual scenario where co-workers engaged in “horseplay” that escalated into an altercation.

In Nufio v. Bridge Hospitality, LLC (ADJ6808931), 2011 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel upheld the WCJ's finding that Applicant's 3/25/2009 injury was compensable, when the injury occurred during an altercation with a co-worker which ensued following a period of "horseplay." In affirming the WCJ's determination, the WCAB panel concluded that Applicant's injury did not arise out of "horseplay" and was not barred by Labor Code § 3600(a)(7), because Applicant was not the initial physical aggressor in the altercation that resulted in his injury.

Testimony offered by Applicant at trial indicated that the incident started when a co-worker, Mr. Hernandez, began calling Applicant names and grabbing his buttocks. According to Applicant, Mr. Hernandez then hit him with a tray, after which Applicant pushed Mr. Hernandez from behind. This type of exchange between Applicant and Mr. Hernandez, consisting of pushing, touching, and insulting language, continued for a period of time but ceased approximately 40 minutes prior to the injury.

Mr. Hernandez admitted that, on the date of the incident, he pushed Applicant but testified that he did so in reaction to Applicant's behavior, including touching, making sexual advances and using foul language, which Mr. Hernandez indicated regularly occurred at work and which Mr. Hernandez found inappropriate. Mr. Hernandez stated that Applicant shoved him with a clenched fist in his back, gave him "the bird" and insulted his mother. He further testified that Applicant told him they should go downstairs to fight and/or engage in sexual conduct. According to Applicant, he was descending the stairs when Mr. Hernandez kicked him from behind. Mr. Hernandez admitted that he was the first one to make contact with Applicant when they were on the stairs, and stated that he was not afraid of nor did he feel threatened by Applicant.

The corroborating testimony of two witnesses indicated that Applicant had, on prior occasions, touched or pushed other employees, and that Applicant was "always fooling around" but not in an angry manner. One of the witness stated that he saw Applicant grab Mr. Hernandez' buttocks on the date of the injury.

In its Opinion and Decision After Reconsideration, the WCAB panel explained the distinction between injuries that occur during the act of "horseplay" and those arising from an altercation:

            ...[A]n injury suffered by an employee while engaged in horseplay is not compensable as not arising out of employment. (Hodges v. Workers' Comp. Appeals Bd. (1978) 82 Cal.App.3d 894, 901 [147 Cal. Rptr. 546] [43 Cal.Comp.Cases870], citing Dalsheim v Industrial Acc. Com. (1932) 215 [C]al. 107, 111-114 [8 P.2d 840].) While neither statute nor case law defines the term "horseplay" (also known as "skylarking"), it has been distinguished from the term "altercation" by an absence of animosity or a willingness to inflict body harm. (Matthews v. Workers' Comp. Appeals Bd. (1972) 6 Cal.[]3d 719, 726 [493 P.2d 1165, 100 Cal. Rptr. 301] [37 Cal.Comp.Cases 124].) Webster's Dictionary defines horseplay as "rowdy or unruly behavior." (Webster's II New College Dict. (1995) at p. 534.) Examples of horseplay include hotel bus boys throwing hard rolls at each other (Pacific Emp. Ins. Co. v. Industrial Acc. Com. (1945) 26 Cal.[]2d 286 [158 P.2d 9] [10 Cal.Comp.Cases 89]), ranch trainees chasing each other around a bunkhouse (Argonaut Ins. Co. v. Workers' Comp. Appeals Bd. (1967) 247 Cal.App.2d 669, 672 [55 Ca. Rptr. 810, 32 Cal. Comp. Cases 14]), tenant of a company housing diving off a balcony into a swimming pool on a bet (Leffler v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 739, 741-741 [177 Cal. Rtpr. 552] [46 Cal.Comp.Cases 1135]), and workplace sparring. (Hodges, supra, 82 Cal.App.3d at pp. 898-899.) Thus, both the dictionary and case law suggest horseplay requires some form of physical activity.

            In turn, section 3600(a)(7) bars an employee's claim for compensation where the injury arises out of an altercation in which the injured employee is the initial physical aggressor. First, we note that this section is to be narrowly and strictly construed in light of the statutory policy of liberal construction in favor of the injured worker pursuant to section 3202. (Matthews, supra, 6 Cal.App.3d at p. 726.) We further note that under section 5705, the burden of proof rests upon the party holding the affirmative of an issue. Thus, the burden to prove applicant's claim is barred under section 3600(a)(7) rests with defendant.

            Moreover, to "arise out of an altercation," as required by section 3600(a)(7), an injury must result from an exchange between two or more persons characterized by an atmosphere of animosity and a willingness to inflict bodily harm. An altercation is distinguishable from "horseplay" or "skylarking," neither of which involves such animosity, although either may result in bodily harm. Section 3600(a)(7) also imposes the necessity of selecting one overt act out of a series of hostile verbal, psychological, and physical acts as the one that, for compensation purposes, caused the quarrel and elicited the ultimate injury. (Matthews, supra, 6 Cal.3d at p. 726.) The Legislature's use of the term "physical" aggressor indicates that it was primarily concerned with the increased risk of injury which arises when a quarrel moves from an exchange of hostile words and nonviolent gestures to a trading of physical blows. Thus, one is not an initial physical aggressor so long as he confines his antagonism to arguments, epithets, obscenities or insults. Instead, an "initial physical aggressor" is one who first engages in physical conduct which a reasonable man would perceive to be a real, present and apparent threat of bodily harm. (Matthews, supra, 6 Cal.3d at p. 719.)

            In fact, a person can be found to be the "initial physical aggressor" simply by acting in a threatening and intimidating manner and not actually making first physical contact. (Gegic v. Worker's Comp. Appeals Bd. (2002) 67 Cal.Comp.Cases [337] (writ den.) (where the employee was found to be the initial aggressor when he got down from the chair that he had been working on to face a co-employee in a threatening manner).) On the other hand, an employee's claim will not be barred where he makes the initial physical contact which poses no real threat of harm but the other person responds with physical aggression that does. (Budd Van Lines v. Worker's Comp. Appeals Bd. (Lepe) [(1996)] 61 Cal.Comp.Cases 1288 (writ den.)(where applicant placed his large co-worker in a headlock after the co-worker called him names and threw boxes at him causing the co-worker to then hit the applicant in the head with a hammer).)

Based upon the testimony of Applicant, Mr. Hernandez and the two corroborating witnesses, the WCAB was persuaded that Applicant and Mr. Hernandez initially engaged in "horseplay" consisting of name calling, touching, grabbing, and pushing. The evidence established that these activities were common practice by the two men, but were devoid of any animosity or willingness to inflict body harm. According to the WCAB, no injury occurred during the horseplay, and none of the physical contact that occurred during the horseplay could be perceived to be a real, present, and apparent threat of bodily harm. However, at some point prior to Applicant's injury, the "horseplay" developed into an altercation.

Despite some conflicting testimony as to how the altercation began, the WCAB concluded that Mr. Hernandez' conduct shifted from horseplay to an altercation when he and Applicant were descending the stairs. Applicant testified he was going downstairs to the restroom. Mr. Hernandez testified that they went downstairs together either to fight or to engage in sexual conduct, and that he was not afraid of Applicant physically nor did he feel threatened by Applicant. It was while descending that stairs that Mr. Hernandez hit, pushed, or kicked Applicant down because he was upset. The WCAB found that this was the act of initial physical aggression that resulted in Applicant's injury. Therefore, Applicant was not the initial physical aggressor in the altercation, and was not barred from receiving benefits.

This case highlights the distinction between the legal concepts of “horseplay” and the “initial physical aggressor” defense. Though at first blush, it may seem that Applicant here engaged in the type of conduct that should bar him from receiving workers’ compensation benefits, the subtle factual differences between “horseplay” and being the “initial physical aggressor” resulted in his injury being found compensable.

© Copyright 2011 LexisNexis. All rights reserved.

Get the cutting edge on case law! If you're a subscriber to the California Library, consider purchasing our California WCAB Noteworthy Panel Decisions Reporter, which contains brief summaries of 40 to 65 noteworthy panel decisions each month. Subscribers get both the print version and electronic PDF of this reporter, which enables them to link directly to the panel decisions on

For more information about LexisNexis products and solutions connect with us through our corporate site.