NAVIGATING INJURIES CAUSED BY HORSEPLAY IN THE WORKPLACE

In Nebraska, a claimant must prove that an injury arose out of and occurred in the course of employment. When the injury is caused by horseplay, this may remove the injury from compensability because horseplay is a deviation from an employee’s typical work duties. The determining factor in this situation is how far of a deviation the horseplay is from the regular course of business.

Horseplay is defined as “a deviation from the typical employer’s requirement that workers work.” Injuries occurring during horseplay may be compensable if: (1) the deviation is “insubstantial,” and (2) the deviation does not “measurably detract from the work.” Varela v. Fisher Roofing, 253 Neb. 667 (1998).

In Varela, the claimant goaded another co-worker into an arm-wrestling match while on a roof. As the two began arm wrestling, the claimant's foot slipped, causing him to fall off the roof. The Nebraska Supreme Court affirmed that the injury was compensable, holding the act of arm wrestling was not a substantial deviation because the injury happened at the very outset of the horseplay and the work stoppage was of a momentary duration. Id.

The Nebraska Court of Appeals tackled another horseplay case which involved a truckdriver who brought fireworks into a warehouse and lit them to impress a warehouse manager who was a fellow fireworks enthusiast. Webber v. Webber, 28 Neb. App. 287 (2020). In this case, the Court concluded that the injury was not compensable, holding that the driver's “act of lighting a firework did not arise out of employment under the Workers' Compensation Act” and constituted “a substantial deviation from work which would measurably detract from work.” Id.

The Webber Court distinguished the case from Varela, noting that the firework lighting “did not arise spontaneously out of work-related banter” but was rather “a personal pursuit intended to impress another fireworks enthusiast.” Id. The driver had "intentionally put the fireworks in his pocket before entering the warehouse" with the stated purpose of showing off louder fireworks. The Court emphasized there was no evidence of the action being related to job performance or customer relationships, concluding that it was “solely personal and had nothing to do with his work,” making for a substantial enough deviation to find the injury not compensable.  

This post was drafted by Connor Hansen, a law clerk at Baylor Evnen Wolfe & Tannehill. If you have questions about horseplay and its affect on compensability, or any other questions regarding Nebraska workers’ compensation, please reach out to Paul Barta or Adam Barrett at (402) 475-1075.