Horseplay and Assault in New Jersey Workers’ Compensation

By: Nicholas A. Dibble, Esq.

Every Autumn Americans celebrate the national pastime, as baseball’s two best teams compete in the World Series.  Last December, many baseball fans believed the Los Angeles Dodgers had purchased the “Fall Classic” when they signed mercurial pitcher ZackGreinke to a $147 million contract.  However, less than a month into the season, Greinke suffered a broken left collar bone that necessitated surgical repair and caused him to miss six weeks of the season.  The injury occurred during an on-field, bench-clearing brawl with the opposing team.   The melee began after Greinke struck an opposing batter in the shoulder with a fastball.  While Greinke maintained the suspect pitch was an accident, he had a history of hitting that particular batter on three prior occasions during the past three seasons.  After the batter was struck by the pitch, he wrestled Greinke to the ground, causing both teams to rush onto the field suspending the play of the game.  Sometime during the ensuing bedlam, Greinke was injured.

Though an extreme example, the Greinke injury offers an interesting framework for examining the treatment of claims in New Jersey that result from horseplay and assaults in the work place.


Regardless of the occupation or working conditions, a certain amount of horseplay is always to be expected in any workplace.  While a certain amount of horseplay is to be expected, it is important to note that horseplay itself is not a defense to a workers’ compensation claim, as both the instigator and the victim may be covered for workers’ compensation purposes.  A defense may exist if the horseplay is determined to constitute a major deviation from the petitioner’s work duties.

The inclusion of a specific provision in the workers’ compensation statute addressing the issue of horseplay is a testament to its status as an inescapable part of the workplace.  N.J.S.A. 34:15-7.1 states that the person who neither instigates nor takes part in horseplay, but who is injured by it, can recover workers’ compensation benefits.  While this rule provides clear guidance for when an injured worker is a victim of horseplay, the statute is noticeably silent on whether the worker who initiates the horseplay is eligible for benefits.

The issue of whether an instigator of horseplay is covered for workers’ compensation purposes was addressed by the Appellate Division in Wasik v. Borough of Bergenfield, No A-794-02T3 (App. Div. December 1, 2003).  In Wasik, the petitioner, a sanitation worker, was injured after he made insulting comments and pelvic thrusts toward a co-worker while the two were completing their duties.  The co-worker responded to this provocation by punching the petitioner in the mouth.  The Appellate Division reiterated that N.J.S.A. 34:15-7.1 does not bar an instigator from coverage for workers’ compensation purposes.  In holding the incident was covered, the court placed limits on its unpublished holding by finding the horsing around was neither extensive nor serious and was commingled with the performance of the job duties.  The court also found that horseplay was part of the “nature of the employment” of the work crew and “may be expected.”  Accordingly, the operative analysis becomes whether the horseplay is within the accepted norms.

Major Deviation from Work

Determining whether horseplay constitutes a major deviation from work is now a preferred focus of the courts when assessing horseplay.  In Trotter v. City of Monmouth, 144 N.J. Super. 430 (App. Div. ), certif. denied, 73 N.J. 42 (1976) the Appellate Division addressed the issue of major deviation.  In Trotter, the petitioner was a county road department worker.  During a break from cutting grass in the heat of July, the petitioner and several coworkers began throwing water at one another to cool off.  The petitioner interrupted this water fight by driving a coworker’s motorcycle that had been parked nearby on and off county property.  It is important to note that during this joy ride, the foreman continuously yelled for the petitioner to stop.  The petitioner eventually drove the motorcycle up a hill, lost control of it and crashed suffering various injuries.  When discussing the case, the Appellate Division turned to Professor Larson’s Workmen’s Compensation Law guidebook, which assesses the gravity of a deviation from employment based upon the following factors:

  • The extent and seriousness of the deviation;
  • The completeness of the deviation (whether it related to petitioner’s 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 such horseplay.

While these factors may appear to add order to the chaos, the application of the major/minor deviation test remains inherently subjective.  Due to the framework’s ambiguity, this horseplay analysis remains a refuge for the creative practitioner seeking to shoe horn an employee’s action into or out of coverage.

 Assaults in the Workplace Constitute a Major Deviation

 As with horseplay, when an employee assaults another employee, the victim is covered for workers’ compensation purposes.  However, it must also be noted that unlike horseplay, there is no published New Jersey case in which the assaulting individual has been found to be covered for workers’ compensation purposes.

Even after determining whether an injury occurred during an assault, the aggressor needs to be determined.  This may be done by distinguishing willful intention to injure someone versus a spontaneous reaction to aggressive behavior.

In Martin v. Snuffy’s Steak House, 46 N.J. Super. 425 (App.Div. 1957), the petitioner, a waitress, entered a dispute with the cook over a customer’s order.  The cook directed vile and abusive language toward the petitioner.  Becoming embarrassed and disturbed that customers were overhearing the abuse, the petitioner attempted to slap the cook, who then retaliated by slamming petitioner into a door and causing her injury.  The Appellate Division found the petitioner was covered by analyzing the petitioner’s conduct in a reflexive manner:

Petitioner’s slap when the chef resumed his offensive talk was simply a reflex action.  It was instinctive and impulsive, as spontaneous as it was unpremeditated.  It was natural conduct in the circumstances, a quick slap that was to be expected, and not such an act as should be considered a totally separate entity and labeled aggression.

Martin at 433.  The court went on to explain the difference between impulsive behavior and premeditated assaults:

We do not consider that the legislature meant to punish a workman for a playful shove, an angry curse, or even an impulsive slap or punch, by depriving him of compensation.  Where the act does not arise out of a private motive, purely personal feud, where it does not amount to willful intention to injure another, it is not for the court to read a new exception, covering aggressors, into the clear and unequivocal text of the Workmen’s Compensation Act.


Subject of the Fight

When determining where there is coverage in an assault case, a preliminary determination must be made as to whether the action arises out of the petitioner’s employment.  As the Appellate Division stated in Martin, an employee injured in an assault may be covered for workers’ compensation purposes when the assault “does not arise out of a private motive, purely personal feud, where it does not amount to willful intention to injure another.” Id.  This requires practitioners to distinguish whether the catalyst to an assault is an issue about work or a personal, non-work animus. 

This may best be illustrated by reaching back to the Appellate Division’s holding in Pittel v. Rubin Bros. Bergen, Inc., 59 N.J. Super. 531. (App. Div. 1960).  In Pittel, the animosity that led to the assault originated from a prior, high school fight.  While petitioner was on a ladder, taunting language was exchanged between the petitioner and the aggressor before the aggressor pulled the ladder from beneath the petitioner and beat him.  Workers’ compensation benefits were denied as the reason for the assault had nothing to do with work and stemmed from a personal grudge.

Assaults where the Aggressor is not an Employee

 Matters in which the individual committing the assault is not an employee are handled similarly to cases where an employee commits an assault.  In Giracelli v. Franklin Cleaners & Dyers, Inc., 132 N.J.L. 590 (1945) a female employee was working alone in a cleaning establishment when she was sexually assaulted by a customer who followed her to a back room where garments were stored.  The Judge of Compensation found the petitioner to be covered, as the assault would not have occurred but for the petitioner’s employment.

As in all workers’ compensation matters, a paramount issue in an assault case remains whether the injuries arose out of the petitioner’s employment.  In Marky v. Dee Rose Furniture Co., 241 N.J. Super. 207 (App. Div.) certif. denied, 122 N.J. 359 (1990) the petitioner was injured while at her place of employment, when she and a coworker were shot by a man with whom she had had a previous social and romantic relationship that predated her employment with the respondent.   At the time of the incident, the shooter was outraged because he believed the petitioner to be dating the coworker who was shot as the petitioner and coworker ate dinner together during breaks.  However, the shooter’s terrorism of the petitioner was not limited to the work place, as he had lurked outside the petitioner’s home for four days prior to the shooting.

The Appellate Division held the relationship between the petitioner and her coworker who was shot may have been fostered by their employment.  However, the petitioner’s decision to have dinner with the coworker on her dinner breaks, which angered the shooter and precipitated the shooting, was in no way related to her job with the respondent.

Whether a baseball player in a ball park or an office worker in a cubicle, horseplay is inherent in any workplace.  However, it is the deviation from the norms and the intricacies of each workplace that will determine whether workers’ compensation coverage exists.

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