Delaware Supreme Court Rules That Man Injured By Horseplay At Work May Sue His Co-Workers In A Personal Injury Lawsuit

It's only fun until someone gets hurt, and then it's hilarious. Or maybe not so much.

An employee who was injured at work during extreme on the job horseplay has been given the green light by the Delaware Supreme Court to sue his co-workers in a personal injury lawsuit.

In a landmark decision, the Delaware Supreme Court has for the first time accepted the "Larson test", named after a widely used treatise called "Larson's Workers' Compensation Law".

Larson's Workers' Compensation Law is a comprehensive, authoritative treatise used by state commissions and frequently cited by courts nationwide.

Larson's test is a four part test which considers the scope and seriousness of the conduct's deviation from the course of regular employment activities, whether it was in connection with or separate from work duties, whether horseplay is acceptable in the workplace in question and whether the nature of the injured person's job typically includes episodes of horseplay.

On July 9th, Delaware Chief Justice Myron T. Steele handed the case back to the lower court and instructed the judge to determine whether or not the co-worker's alleged horseplay was "outside the scope of employment" under the Larson criteria.

The plaintiff in this case, who was injured by co-workers during horseplay, worked as a pipefitter and welder at a construction and contracting company where horseplay and practical jokes are said to be common.

He has filed a personal injury lawsuit against 3 co-workers who he says in October 2000, detained him in a restroom and bound him from his ankles to his shoulders using duct tape.

The worker's injuries were so severe they required back and knee surgery to correct, and he also needed counseling after the event. He has collected over $300,000 in workers' compensation benefits.

The lower court judge ruled on summary judgment that workers' compensation was the plaintiff's sole remedy to collect for his injuries. The man had sued the co-workers for more than $74,000 in medical expenses and more than $142,000 in compensation for lost wages, future wages and future medical bills.

The plaintiff then appealed to the Delaware Supreme Court.

Delaware Chief Justice Steele wrote in his decision that "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)."

This decision marks the first time that that a plaintiff has convinced the Delaware Supreme Court that the Larson standard is appropriate should be applied.

As a result of Chief Justice Steele's decision the case has been sent back to the lower court where the Larson rule will be applied.

Usually in such a case, if the plaintiff successfully argues that the co-workers' conduct was outside the scope of employment, it would mean that the he or she would not be able to collect workers' compensation benefits. However, exclusivity provision of the Delaware Workers' Compensation Act, which would normally bar any other recovery parallel to a workers' compensation claim, uses the co-worker's conduct as the litmus test.

In this case, attorneys for the plaintiff have successfully argued that the actions of the co-workers were so far and beyond what anyone could consider acceptable horseplay in the workplace, he should be allowed to bring a personal injury negligence claim against them.

The personal injury case has not been heard yet and is still pending in Delaware.

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