Workers Not Liable for Horseplay Injury

The Delaware Supreme Court has ruled that a man injured when co-workers tied him up with duct tape during workplace horseplay cannot sue them for negligence because the injuries occurred within the scope of his employment.

The state high court agreed with the trial judge's application of the four-part "Larson test" to determine if the co-workers' conduct amounted to horseplay outside the scope of employment.

Although the workers' compensation system typically provides the means for an employee to recover for on-the-job injuries, Delaware law provides an exception when injuries co-workers caused do not arise "out of or within the course and scope of employment," the court explained.

According to the opinion, Stephen Grabowski and co-workers William Mangler, David Smith and Joseph Ziemba are welders at J.J. White Inc., a Delaware City oil refinery.

Although the company prohibited horseplay on the job, employees often engaged in horseplay and practical jokes, the opinion says.

In October 2000 Grabowski became the target of such horseplay when Mangler, Smith and Ziemba wrapped him "from ankles to shoulders" in duct tape in a company restroom.

Grabowski said he was injured during the incident and required surgery on his lower back and right knee. He also said he suffers from post-traumatic stress disorder and requires counseling.

The court noted that Grabowski has received more than $300,000 in workers' compensation for his injuries.

He sued the co-workers in the New Castle County Superior Court, and the trial judge found that workers' compensation was Grabowski's exclusive remedy.

Grabowski appealed, and the Delaware Supreme Court for the first time adopted the Larson test, established in Arthur Larson's "The Law of Workmen's Compensation."

Under the test, a trial judge must consider:

• The extent of the deviation from usual workplace conduct;
• Whether the deviation involved an abandonment of duty or was commingled with performance of duty;
• The extent to which horseplay was an accepted part of the workplace; and
• Whether the nature of the employment may be expected to include horseplay.

The Supreme Court also found it important to consider whether an injured worker participated in the horseplay or was a nonparticipating victim.

The high court remanded the case. After applying the Larson test, the trial court concluded that the co-workers were acting within the course and scope of their employment.

Grabowski appealed a second time, arguing that the trial judge misapplied the test.

The Supreme Court disagreed and affirmed.

"None of the workers abandoned their duties 'sufficiently, completely and extensively' to effectuate the prank because there were no active duties to abandon," the high court said.

It was undisputed that all the men were on a work break or on downtime when the incident occurred, although they were required to remain at the work site, the court noted.

The Supreme Court said the Larson test's third prong weighed in the co-workers' favor because horseplay had become a part of the working environment despite the company rule barring such activity.

Finally, the court held that because horseplay was an accepted part of the workplace environment, the nature of the employment was expected to include some horseplay.

Because the incident involving Grabowski was at least the second duct-taping occurrence, "it is reasonable to find that the duct-taping incident at issue was in line and 'not so far removed' from the typical horseplay of employees at this job site," the court said.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@ThomsonReuters.com.

Grabowski is represented by W. Christopher Componovo and Gary Nitsche of Weik, Nitsche, Dougherty & Componovo in Wilmington, Del.Counsel for the defendants are Nancy Chrissinger Cobb of Chrissinger & Baumberger; Robert Pearce and Thomas Riggs of Ferry, Joseph & Pearce; and Joseph Gabay and Wayne Marvel of Maron, Marvel, Bradley & Anderson, all in Wilmington.