Virginia Supreme Court reaffirms innocent victim of horseplay doctrine in workers compensation law

In Simms v. Ruby Tuesday, Inc., No. 091762 (Va. Jan. 13, 2011), the Court considered the issue whether the actual risk test analysis articulated in Hilton v. Martin materially changed the "innocent victim of horseplay" doctrine under Virginia's workers compensation law. After reviewing the history and policy of the horseplay doctrine, the Court held that the doctrine had not been changed by Hilton v. Martin.

In Hilton v. Martin, the claimant was severely injured when a co-worker turned on the power to a manual cardiac defibrillator, adjusted its energy to 150 joules, and touched the defibrillator paddles to her left shoulder and left breast, while simultaneously activating them. The claimant died of electrocution and cardiac arrest. This was not horseplay in the Court's view. Rather, Hilton v. Martin was analyzed as a workplace assault.

In Simms, the claimant had been pelted with ice particles in a playful manner, and dislocated his shoulder when he raised his arm to block the ice. The Court adopted the reasoning of Judge Cardozo in Leonbruno v. Champlain Silk Mills, and distinguished horseplay encountered in the workplace from an assault.

In deciding Hilton, it was not our intention to scuttle the horseplay doctrine, or to impose any additional burden of proof upon claimants found to be the innocent victims of workplace horseplay. The analysis stated in Hilton, regarding the actual risk test, is applicable in worker's compensation matters concerning an assault, not those involving an innocent victim of horseplay.