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My post of 4/23/12, "Kangaroo Court: How Would Delaware Handle the Australian Hotel Sex Romp Case?" prompted a rare follow-up comment from Chief Hearing Officer Chris Baum that I cannot get out of my head. Thus, I am back again with the case in Australia....and not because I obsessed with sex. Chris's comment?
"I am a little surprised that you got through the whole posting without touching on the issue of "horseplay"--or maybe something that just sounds like that..."
I had an OMG!! moment. The light bulb went off in my head. Why didn't I think of that? I then got to thinking I should take a quick look at Delaware's horseplay defense up close and personal.
For your entertainment value, here is a short survey of some IAB decisions where the horseplay defense fell on its face:
Anna Hamilton v. Wawa, IAB# 1244476 (9/23/04) Horseplay defense rejected where claimant hit by co-worker with a 5-pound block of cheese. Claimant was deemed a non-participating victim of horseplay and there was not sufficient deviation from the work activity...after all, Wawa is known for its cold cuts.....:>)
Crystal Ross v. The Wood Company, IAB#1122347 (3/18/99) Here Claimant, a food service worker, sustained injury as a result of a slip and fall on a wet floor while imitating a co-worker in a "hop step" movement. Horseplay defense rejected based on the proposition that "it was not a serious deviation and was co-mingled with the performance of her job duties." With other delightful commentary to the effect that this job is so boring that a few antics are needed for comic relief (and yes, if I sound bitter I am-having been defense counsel on this one)
Brenton Robinson v. Wilmington Housing Authority, IAB# 1237367 (3/18/04) Horseplay defense rejected because Claimant found to be a non-participating victim of the incident in question, having sustained his injuries as the result of being lowered to the floor, while seated in a chair, by a co-worker. The Board looked to the Delaware Supreme Court decision of General Foods v. Twilley, 341 A. 2d 711 (Del. 1975) holding that horseplay is compensable if Claimant is a non-participant in the activity (Twilley victim was hit on the head by a football-sized wad of aluminum foil).
So one might conclude it is a tough defense to advance at the IAB. I was able to locate two higher court decisions that talk about horseplay, the second of which left me a little perplexed.....and a bit concerned.
Robert Seinsoth v. Rumsey Electric Supply, No. 00A-09-006-JOH (Del. Super. Ct. 2001) Injuries sustained in this case were the product of wrestling with co-workers in a warehouse-type setting. The court referenced the four-pronged Larson test (utilized by the Hearing Officer below) which looks to:
(1) the extent and seriousness of the deviation(2) the completeness of the deviation-is it a complete abandonment of job duties or is it co-mingled with some aspect of the job?(3) the extent to which the practice of horseplay has become an accepted part of the employment(4) the extent to which the nature of the employment might be expected to include some horseplay.
Seinsoth affirmed the decision of the Hearing Officer denying benefits.
Steven Grabowski v. William Mangler, David Smith and Joseph Ziemba, No. 02C-10-118-PLA (Del. Super. Ct. 2007) This case took an exhaustive look at the Delaware workers' compensation law on a Motion for Summary Judgment on the issue of whether exclusivity of workers comp would bar a recovery in tort. On remand from the Delaware Supreme Court, the Superior Court was instructed to apply the newly-adopted Larson test. The horseplay at issue was argued to constitute a serious deviation from pipefitting and welding jobs held by the parties involved. Claimant's injuries were the outcome of an episode in which the claimant was brought into the bathroom by three co-workers and bound in duct tape from his shoulders to ankles.
There is commentary that horseplay is to be expected where the job involved produces a lot of "down time" and that if the employees acting on their down time, a deviation from duty cannot be argued. The Grabowski court stated it would look to "the seriousness of the work departure rather than the seriousness of the consequences." And given the evidence that horseplay and high jinks in some form or another were commonplace, the Court was not swayed by the argument that "the specific act of wrapping a person in duct tape is so far removed from the normal downtime occurrences that the actions were an abandonment of the job duties of a pipe fitter."
Bottom line is that the Court in Grabowski ruled that the defendants did not deviate from their work, that any deviation was at best insubstantial, that the practice of horseplay was an accepted concomitant of the employment, and that the nature of this employment was such that some level of horseplay was foreseeable.
Wow. I guess my sense of deviation is a little different from our Superior Courts. Admittedly, I don't work in a warehouse and Lord knows I don't have "down time"-- but I would hope that I never come to work to be mummified in duct tape and thrown into the ladies' room.
Which brings us back to the injuries sustained in the Australian hotel during the overnight business conference. And what would Delaware do? (Which is similar to "what would Jesus do", but apparently without what I like to call "Book of James discernment"). I do not have many facts about the case in Australia. I can tell you the injured lady was a "public servant" (apparently so). Her employer was the "Human Relations Section of the Commonwealth Government." [God really does have a sense of humor]
So my observations as to how might this play in Delaware?
• She was engaged in "human relations" at the time of the accident-from my vantage point, the "co-mingling of duties" argument looks better for her than it does for the defense
• If "down time" means the absence of deviation-- again score one for the claimant
• Was this an accepted part of the employment? In Delaware, that can mean how "pervasive" is it-and do we need to take a poll on marital infidelity?
• I have no idea whether the nature of the employment equates to an expectation of horseplay-but again, she worked for "Human Relations"......LOL!
• And finally, if being entombed in duct tape is not considered "far removed from the normal down time" (and was compared by our Court to other pranks such as taping a lunch box shut or placing water in a hard hat)...well, heck, what's a little hard-pounding , head-banging sex among colleagues?
Irreverently yours,Sassy Cassy(a/k/a Cassandra Roberts)
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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