Opinion
C.A. No. 02C-10-118-PLA.
Submitted: December 15, 2006.
Decided: January 17, 2007.
Upon Defendants' Motions for Summary Judgment. GRANTED.
Gary S. Nitsche, Esquire, Weik Nitsche Dougherty Componovo, Wilmington, Delaware. Attorney for Plaintiffs.
Joseph A. Gabay, Esquire, Maron Marvel, P.A., Wilmington, Delaware. Attorney for Defendant William Mangler.
Nancy Chrissinger Cobb, Esquire, Chrissinger Baumberger, Wilmington, Delaware. Attorney for Defendant David Smith.
Robert K. Pearce, Esquire, Ferry Joseph Pearce, P.A., Wilmington, Delaware. Attorney for Defendant Joseph Ziemba.
I.
Before the Court are three Motions for Summary Judgment filed by
William Mangler ("Mangler"), David Smith ("Smith"), and Joseph Ziemba
("Ziemba") (collectively "Defendants") in this action involving a workplace
prank gone awry. Smith and Ziemba have specifically asked the Court to
See Dockets 72, 73, 74, 75.
grant summary judgment on the basis of the "exclusivity" provision under
DEL. CODE ANN. tit. 19, § 2304 ("Section 2304") of the Delaware Workers'
Compensation Act ("Act"), which bars an employee from suing a fellow
employee for injuries sustained when employed by the same employer and
acting within the course of employment. Mangler has filed a "Notice of
Joinder" incorporating the arguments and authority contained in the
memoranda filed by his co-defendants. For the reasons that follow,
See Dockets 74, 75.
Defendants' Motions for Summary Judgment are GRANTED.
II.
In October 2000, Plaintiff Stephen J. Grabowski, Jr. ("Grabowski")and Defendants were employed by J.J. White, Inc. ("J.J. White") as pipe
fitters and welders. The nature of their work was such that there were
extended periods of down-time between jobs in which they would have very
little to do. During these periods of inactivity, in an effort to pass the time,
Grabowski and Defendants would often engage one another in practical
jokes and pranks. On one occasion, Defendants caught Grabowski in a
bathroom at the job site and wrapped him in duct tape. This was done as a
practical joke in an effort to get back at Grabowski for his prank of putting
water into Smith's hard hat. Grabowski, however, was injured as a result of
being duct-taped. He subsequently applied for and received workers'
compensation benefits, and later filed this action against Defendants for the
same injuries he sustained from that incident.
See Docket 72, p. 3; Docket 73, p. 2.
III.
Defendants have moved for summary judgment. They argue that the"exclusivity" provision under Section 2304 of the Act precludes Grabowski
from bringing this action. Specifically, Defendants contend that the acts of
"horseplay" they engaged in while on the job, specifically the act of duct-
taping Grabowski, were within the course and scope of their employment
with J.J. White. Therefore, according to Defendants, because Grabowski's
injuries arose "out of and in the course of" his employment, the Act is his
exclusive remedy pursuant to Section 2304.
Grabowski responds that the "horseplay" engaged in by the parties
was not within the course and scope of their employment. As support,
Grabowski asserts that J.J. White specifically forbids its employees from
engaging in "horseplay," that Defendants were aware of J.J. White's rule
against such conduct, and that J.J. White was unaware that the parties were
continuously engaging in this conduct. Grabowski, therefore, concludes that
any "horseplay" which occurred is a complete deviation from the parties'
work activities and, as such, the parties' conduct was outside the scope of
employment. Accordingly, Grabowski maintains that this action is not
precluded under Section 2304.
IV.
When considering a motion for summary judgment, the Court's
function is to examine the record to ascertain whether genuine issues of
material fact exist and determine whether a party is entitled to judgment as a
matter of law. Summary judgment will not be granted if, after viewing the
record in a light most favorable to the non-moving party, there are material
facts in dispute or if judgment as a matter of law is not appropriate. If,
however, there are no material facts in dispute, and the moving party is
entitled to judgment as a matter of law, summary judgment will be granted.
See SUPER. CT. CIV. R. 56; Storm v. NSL RocklandPlace, LLC, 898 A.2d 874, 879 (Del.Super.Ct. 2005); Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973); Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
The moving party bears the initial burden of demonstrating that the
undisputed facts support its legal claims. Should the moving party make
such a showing, the burden shifts to the non-moving party to demonstrate
that genuine issues of material fact exist.
See Storm, 898 A.2d at 879-880; Urena v. Capano Homes, Inc., 901 A.2d 145, 150 (Del.Super.Ct. 2006).
V.
The Act is the "exclusive remedy available to an employee to securecompensation from an employer for work-related injuries." As Section
Dockham v. Miller, 1997 WL 817873, at *2 (Del.Super.Ct. May 21, 1997).
2304 provides:
Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.
Therefore, Section 2304 effectively "precludes all employee actions against
the employer to recover for personal injuries, irrespective of the liability
Id.
This preclusion also extends to co-employees of the injured claimant
when "the employee stands in the place of the employer." That is, a co-
Id.
employee is excluded from a claimant's actions when, at the time the injury
occurred, the co-employee was "acting within the course or scope of his
employment." The rationale for extending an employer's exclusion to a co-
Id.
employee is because an injury caused by a co-employee in the course or
scope of his employment is compensable under the Act.
See DEL. CODE ANN. tit. 19, § 2363(a); Groves v. Marvel, 213 A.2d 853, 855 (Del. 1965) ("The purpose of § 2363 (a), and like enactments, is to exclude co-employees from the category of `third persons' who may be sued by an injured employee, and thus to bar common law negligence suits against co-employees by fellow employees or by subrogated employers in connection with compensable injuries. It appears that the employer's immunity from suit has been legislatively extended to co-employees in a number of states on the theory that, as part of the quid pro quo in the compromise of rights which forms the basis of workmen's compensation, employees are entitled to freedom from negligence suits for compensable injuries. The rationale for such legislation seems to be that by becoming employed in industry, the worker multiplies the probability of not only injury to himself but also liability to others; and if he is exposed to ruinous suits for damages by co-employees, the
beneficent effects of workmen's compensation are too drastically reduced.").
In determining whether a co-employee was acting within the course or
scope of his employment when the injury to the claimant occurred, the Court
"generally look[s] to the time, place, and circumstances of the injury."
Dockham, 1997 WL 817873, at *3.
This requires a focus on three factors: (1) whether the co-employee's act
causing the injury was an accident or a willful act; (2) whether the injury
was directed against claimant as an employee or because of claimant's
employment; and (3) whether the injury was directed against the claimant
See id.; Ward v. General Motors Corp., 431 A.2d 1277, 1280 (Del.Super.Ct. 1984).
Delaware courts have not expressly applied these factors to a situation
involving an employee/claimant injured as the result of horseplay. And the
"case law, as it relates to horseplay injuries in the workplace, is sparse[.]"
Nonetheless, this Court has held that "[i]njuries that occur as a result of a
claimant's horseplay are considered outside the course of employment."
Cave v. Perdue Farms, Inc., 1995 WL 562156, at *4 (Del.Super.Ct. Aug. 28, 1995) (emphasis supplied).
Specifically, under "Delaware law, . . . an employee who participates [in]
horseplay, which is prohibited by the employer, may not recover [under the
Act] for injuries suffered as a result of horseplay, since the activity is
determined to be outside the course and scope of employment." However,
Seinsoth v. Rumsey Elec. Supply Co., 2001 WL 845661, at *1 (Del.Super.Ct. Apr. 12, 2001).
"an employee not participating in such horseplay may recover [under the
Act] for injuries sustained as a result of another employee's horseplay."
Id.
Stated diffeently, a "non-participating victim of `horseplay' may recover
Gen. Foods Corp. v. Twilley, 341 A.2d 711 (Del. 1975). See also Lomascolo v. RAF Indus., 1994 WL 380989, at *2 (Del.Super.Ct. June 29, 1994) ("While Appellant's injury occurred on Appellee's premises, during work hours, and at the location where Appellant was scheduled to be in order to perform his duties, Appellant's horseplay cannot be deemed to have arose out of or within the course of his employment. Appellee's work rules prohibit horseplay on the work site. Appellant was aware of these safety rules and was acting in contravention of them when he was injured.").
In Gen. Foods Corp. v. Twilley, the "unrefuted testimony" showed
that the employee/claimant was at her work station when she was hit on the
head by an aluminum-foil ball about the size of a softball. "Although the
employee testified that she had participated in the ball-throwing activity in
the past, the [Industrial Accident] Board found that on the date of the
incident she was a non-participating victim of such activity." The Board,
Id. at 711.
therefore, awarded the claimant workers' compensation benefits because a
non-participating victim of "horseplay" may recover compensation. On
appeal, the Delaware Supreme Court determined that "[t]here is no evidence
that the employee was a participant in the `horseplay' at the time of the
accident" and, as such, affirmed the Board's decision.
Id.
In this case, as was the situation in Twilley, the parties' deposition
testimony clearly illustrates that Grabowski was a "non-participating victim"
of the Defendants' horseplay. Grabowski testified that when he went to use
the bathroom at the job site, he was grabbed from behind and was forcefully
placed on the ground and held there by Defendants while he was being duct-
taped. Defendants' testimony reiterates Grabowski's account of what
See Docket 72, Ex. A, Grabowski Dep., p. 60-61:
A. I went in. I said, "[Mangler], I got to use the bathroom." And so I used the urinal. I turned around to grab my hard hat off the sink, and he somehow got behind me and suckered me, not sucker punched me but suckered me, picked me up from behind and threw me on the ground. And Ziemba and Smith were . . . watching. And then as soon as he got me down on the ground they jumped on me.
* * *
Q. So now Mr. Mangler has grabbed you and put you on the ground, and then what happens?
A. He didn't put me on the ground. He body slammed me on the ground. He held me down, and held me, was holding me real tight, and them other guys started to wrap me with tape, and they took turns back and forth wrapping. Ziemba and Smith was wrapping first. And then one of them, I don't know which one it was, but they stopped wrapping and held me, and then Mangler started wrapping me.
transpired in the bathroom, which is that Defendants surprised Grabowski
from behind and took him to the ground with force. Defendants have also
Id., Ziemba Dep., p. 20:
A. As we are washing our hands, [Mangler] came in with [Grabowski]. [Grabowski] went to the bathroom . . . and then started washing his hands. And [Mangler] came up from behind him, grabbed him around his shoulders, grabbed his legs. We laid him on the floor. [Smith] taped his legs up, taped his hand by his waist, by his elbows.Id., Smith Dep., p. 11:
A. So he comes into the [bathroom] trailer. [Mangler] grabs him around his arms. I believe Mr. Ziemba grabbed him by his feet. They laid him down on the ground. I started to duck tape his legs[.]Id., Mangler Dep., p. 15:
A. And we went in [to the bathroom.] . . . I relieved myself and I know he [Grabowski] relieved himself and he went over and washed his hands. And he was just about done washing his hands, I grabbed him around his arms and Joe grabbed him by his feet and we laid him down.
testified that Grabowski had no prior knowledge of Defendants' plans to
duct-tape him and that he never consented to such action. Although the
Id., Ziemba Dep., p. 21-22:
Q. . . . Would you agree with me that Mr. Grabowski had no idea that you were going to duck tape him?
A. I would imagine he didn't.
Q. He did or didn't?
A. Did not.
* * *
Q. And at any point in time did Mr. Grabowski consent to being taped up?
A. NoId., Smith Dep., p. 15:
Q. Did you get the impression that Mr. Grabowski wanted you to tape him up?
A. I am sure he didn't say, Hey, can you guys duck tape me up? But no.
record indicates that Grabowski had engaged in similar horseplay on
previous occasions while employed at J.J. White, the parties' testimony
Id., Grabowski Dep., p. 62.
confirms that Grabowski was not a willing and active participant in the
horseplay engaged in by Defendants on the date of the incident in question.
He was merely the subject of Defendants' horseplay and ultimately, like the
claimant in Twilley, became the victim of such horseplay after he sustained
injuries as a result of Defendants' actions. Grabowski, therefore, can only be
described as a "non-participating victim." Accordingly, because a "non-
participating victim of `horseplay' may recover compensation" under the
Twilley, 341 A.2d at 711.
Act, he is precluded from maintaining this action pursuant to the
"exclusivity" provision of Section 2304.
VI.
For the foregoing reasons, Defendants' Motions for Summary
Judgment are GRANTED.