Readers of this blog know that it is extremely difficult for an employee to sue his or her employer or co-employee in civil court. That was proven again in Johns v. Wengerter, A-2053-17T1 (App. Div. April 1, 2019).
Johns, a City of Linden firefighter, was on duty at the
firehouse on November 27, 2015. He went
to use the toilet but when he sat down, he heard and felt an explosion beneath
him. The explosion was caused by a bang
snap, which is a small firework that detonates when compressed. Johns suffered second degree scrotal burns as
well as a contusion and a blood blister.
A co-employee, Wengerter, admitted to Johns that he placed
bang snaps in various places in the firehouse as a prank. He also apologized to Johns after the
incident. Later on he denied having done
this. Johns never filed a workers’ compensation
claim. Instead, he sued Wengerter in
civil court. Wengerter defended the suit
by raising the exclusive remedy provision of the New Jersey Workers’
Compensation Act. That provision in
N.J.S.A. 34:15-8 renders workers’ compensation the only remedy for injuries to
workers arising from their employment, except for rare circumstances. Johns argued that the claims were not barred
because Wengerter was acting outside the scope of his employment. He also asserted that Wengerter’s actions
were intentional.
The trial court dismissed the suit, and Johns appealed. The Appellate Division reviewed the record
and concluded that the trial court’s dismissal of the case had adequate
support. It said, “Johns produced no
evidence that Wengerter’s placement of the bang snap on the toilet was anything
other than an ill-conceived prank or ‘so far a deviation’ from work-related activity
‘as to constitute an abandonment of his employment.’ “
The Court also added that this injury to Johns would be
covered under the New Jersey Workers’ Compensation Act as Johns was the victim
of horseplay. “The placement of a bang snap on a men’s room toilet falls within the
realm of coworker horseplay intended to startle, but not injure, a coworker
despite the unfortunate and unintended result in this instance.” In evaluating whether this was co-worker
horseplay, the Court noted: 1) the actions took place in the workplace; 2)
Johns and Wengerter were on duty, and 3) the fixture involved, namely the
toilet, was part of the employer’s workplace.
In regard to the argument that Wengerter intended to harm
Johns, the Court said that there was simply no evidence in the record to
support this assertion. “There is no suggestion in the record that
Wengerter was aware that the particular circumstances of the prank that injured
Johns was substantially certain to result in a physical injury.” This case is a useful one for distinguishing
horseplay (which is always compensable for the victim) from acts of intentional
harm (for which an employee can bring a civil suit). Proving intentional harm remains extremely
rare and difficult in New Jersey, and the plaintiff in this case did not come
close.
The post Reckless Prank By Co-Employee Does Not Permit Victim To Pursue Civil Suit appeared first on NJ Workers' Comp Blog.
