High court reinstates ‘horseplay’ jury award
A construction worker injured
during workplace “horseplay” was entitled to keep his $75,000 award
against the construction company, the Supreme Court of Virginia said
today.Donald Samuel filed his negligence action against C.W. Wright Construction Company in 2007 after the Workers’ Compensation Commission said the injuries to his neck and back did not “arise out of” his employment.
Samuel was injured at work when his coworker, Ashley Shull, came up behind Samuel, picked him up in a “bear hug” with an assist from coworker Joshua Ashby, and then dropped Samuel to the ground. Ashby testified that horseplay occurred in the workplace from time-to-time, and he had never been disciplined for “wrestling around.”
The jury found for Samuel against both Shull and Wright, assessing damages of $1,365.06 against Shull for battery and tagging Wright for $75,000, plus interest. Richmond Circuit Court Judge Melvin Hughes R. Hughes Jr. set aside the verdict against Wright and entered final judgment for the construction company.
In its Feb. 24 unpublished order in Samuel v. C.W. Wright Construction Co., No. 110070, the Supreme Court majority said the jury had been properly instructed that Wright’s liability depended on whether Shull’s actions were “within the scope of” his employment. But the high court could not say, as a matter of law, that the evidence was insufficient to prove the battery by Shull occurred within the scope of Shull’s employment with Wright. The court said it would not disturb the verdict because of a discrepancy between the two awards, and remanded the case for entry of an appropriate order.
Justice Elizabeth McClanahan dissented from the order, joined by Justice S. Bernard Goodwyn. The dissent said the evidence showed, as a matter of law, that the “horseplay” was outside the scope of Shull’s job. Wright had an express rule against horseplay and practical joking, and Shull admitted he should not have been horsing around at the time of Samuel’s injuries, according to the dissent, so Wright should not be vicariously liable to Samuel.
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