Workers' Compensation not Only Remedy for Injuries from Horseplay

Stephen Grabowski sustained injuries arising from horseplay at work, for which he collected $300,000 in workers’ compensation and required back and knee surgery and counseling. He then sued his two co-workers who spearheaded the horseplay, William Mangler, David Smith and Joseph Zimba.

Even though it is counter to company rules, construction workers often engage in horseplay and practical jokes because of long periods of downtime and inactivity between projects, according to the opinion.

A trial judge ruled for the defendants, but Grabowski appealed, contending that that the horseplay that injured him “did not arise out of or within the course and scope of his employment.” Because of that, he contended, the trial judge erred when she threw out the claim on the basis that his co-workers injured him within the course of their employment.

Injured workers cannot generally bring third-party claims against co-workers because they are employed by the same company. That would make the co-workers fall under the blanket of “employer” and Grabowski had already settled his claims with the employer.

However, the Delaware court contended: “There are some instances, however, where co-employees’ horseplay may be so unreasonable and so unexpected that it is not within the co-employees’ course and scope of employment. Under these circumstances, a claimant may bring a private tort action against his co-employee(s).”

The four-part test to determine whether the horseplay is so serious as to bring it outside the ring of “course and scope of employment” :

• the scope and seriousness of the conduct’s deviation from employment activities,
• whether it was co-mingled or separate from work duties,
• whether horseplay is accepted in the workplace in question, and
• whether the nature of the job typically includes horseplay.

The Delaware Supreme court sent the case back to the trial court to determine if this four-part test was met in Grabowski’s claims.

The case is Stephen H. Grabowski Jr. v. William Mangler , No. 65, 2007 (Del.).