Del. SC: Trial court must answer horseplay question

John O'Brien Jul. 10, 2007, 2:43pm


DOVER, Del. - A man who has already received more than $300,000 in Workers' Compensation after being duct-taped in a bathroom will have his lawsuit against the men who did it reconsidered by the trial court, the Delaware Supreme Court recently decided.

On Monday, the opinion authored by Chief Justice Myron Steele sent Stephen Grabowski's previously dismissed third-party negligence case against William Mangler, David Smith and Joseph Ziemba back to its trial court, which must put the facts of the case up to a Larson Test to determine if the horseplay occurred within the scope of the men's employments.

"The trial judge determined that workers' compensation was Grabowski's exclusive remedy; however, the trial judge failed to analyze sufficiently whether Mangler, Smith, and Ziemba's actions constituted horseplay that was outside the course and scope of employment. The parties agree that the trial judge did not make this determination, and the record is insufficient for us to consider the factual dispute for the first time on appeal.

"We adopt a test suggested by Professor (Arthur) Larson to determine whether an employee's conduct constituted horseplay of such a character that it could be considered conduct outside the course and scope of employment."

The opinion states that even though horseplay was forbidden at the Delaware City Oil Refinery site, co-workers often engaged in it and other practical jokes. On Oct. 16, the three defendants held Grabowski in a bathroom and wrapped him, from his ankles to his shoulders, in duct tape.

Grabowski says he suffered physical injuries that required surgery on his lower back and right knee, as well as post-traumatic stress, for which he underwent counseling.

The trial court ruled Workers' Compensation was his exclusive method for recovery, but Grabowski contends that any injuries sustained as a result of co-workers' acting outside the scope of employment may be the basis for a negligence suit.

"Workers' compensation may be a plaintiff's exclusive remedy in some instances of co-employee horseplay if the co-employee's actions are within the course and scope of employment," Steel wrote. "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."

Steele also wrote that this is the first time the Court has adopted Larson's test as a basis for determining if an action may be brought.

The trial judge will look at four factors:

-The extent and seriousness of the deviation;

-The completeness of the deviation (whether it was co-mingled with the performance of duty or involved an abandonment of duty);

-The extent to which the practice of horseplay had become an accepted part of the employment; and

-The extent to which the nature of the employment may be expected to include some horseplay.

"If the trial judge determines that the co-employees' horseplay constituted conduct outside of the course and scope of employment, then Grabowski may bring an action against his co-employees Mangler, Smith and Ziemba as if they were third parties and not natural persons in the same employ," Steele wrote.

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