We had so much fun talking about that Australian Hotel Sex Romp case and as such, this post will continue to let the good times roll. The happenings in Australia have been impactful on the local front as they have promoted discussion of our own laws on course and scope and the available defense to injuries that arise out of high jinks and rough-housing.
After my last post, "A Roll in the Hay" (4/25/12), I heard from our newest Hearing Officer (and former defense lawyer) Eric Boyle. Eric reminded me about his victory on a horseplay defense in a case involving paintball on the job. Gordon Coleman v. T.C. Electric, IAB # 1295468 (1/23/08) Part 1 and Part 2, and Gordon Coleman v. T.C. Electric, IAB# 1295468 (4/29/09)(Order on Re-Argument) is the case and here is what Eric had to say:
"The Board relied on Seinsoth in this case and of course it was very fact driven. Unfortunately the claimant lost most of his sight in one eye, but the Board ruled he was a willing participant in the horseplay and therefore not within the course and scope of his employment. His story was that he was ambushed and ran for his work van, which happened to have his paintball equipment in it. He claimed that his gun was in the cab and he was in the back so he could not get his gun. He then exited the van and ran toward the unfinished house (with framing but no walls, and hence no cover from paint balls). He turned to see if they were chasing him and was struck in the eye. The independent witness, one of the other participants from a different employer, testified claimant came out of the van with his gun and was returning fire. Several witnesses also mentioned that these vans had a passage to allow access to the cab from the rear cargo area. Claimant's supervisor also testified that he had previously been warned about playing paintball on the job site. The Board did not find the claimant credible and relied on the other witness's version of events. If anyone who bought a house in Middletown had orange and green splats on unfinished basement framing, now you know why! "
The Board in this Coleman case relied on Seinsoth's analysis and also the holding in Lomascolo v. RAF Industries, CA No. 93A-11-013, Alford, J. (Del. Super., 6/29/94). Seinsoth and Lomascolo are both wrestling cases and in both, benefits were denied. I am thinking that our Aussie friends engaging in rough sex are analogous to these cases, should rough sex ever make its way to The First State.
So we have now had three posts on this topic. I am hopeful this will be the end and we can move on to other good times and great topics. I think when all is said and done, we have given you everything you always wanted to know about horseplay....but were afraid to ask...:>)
Irreverently yours,Cassandra Roberts
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