Thursday, August 15, 2019

What does Vosberg v. Putney Have to do with Horseplay in Workers’ Compensation Law?

I am scrambling with intensity trying to convert a 5-credit, two-semester torts course to a 4-credit, one-semester torts course.  Occasionally, the mind wanders . . .

A long, long time ago, in late 19th century Wisconsin, 12 year old Putney kicked 14 year old Vosberg in the leg within their classroom. Why?  Perhaps it was a “boyish prank.” It turned out that Vosberg’s leg had a “preexisting condition” and experienced unexpectedly bad symptoms as a result of the kick. We use the case in law school as an early example of courts formally invoking the “eggshell-skull” rule. “You take your plaintiff as you find her.” After a mere three trips to the Wisconsin Supreme Court (grappling with, among other things, whether a physician should have been allowed to testify by deposition where facts already proven were excluded from the physician’s consideration in a hypothetical question),  it was determined that—yes—Putney was liable in battery.

This got me thinking about the horseplay rules in workers’ compensation (because even though the kick was adjudged a “battery” the majority suggested it might have been deemed “horseplay” had it been delivered in the schoolyard, though it was muddy about how that would have changed the outcome). As many readers of this blog will know, horseplay in workers’ compensation is most frequently treated as a “course of employment” problem. That is, it is most often seen as a potential disqualifying “deviation” from employment that is assessed (as the Larson’s treatise explains) by considering:

(1) the extent and seriousness of the deviation, (2) the completeness of the deviation, (3) the extent to which the practice of horseplay had become an accepted part of the employment in question, and (4) the extent to which the nature of the employment may be expected to include some such horseplay. (In Wyoming, our lead case involves two minors scuffling in a Burger King).

As Larson’s also notes, in early workers’ compensation law non-participating victims of horseplay were uniformly denied coverage. Yet this denial is perfectly consistent with the traditional conception of workers’ compensation as a quid pro quo for negligence (not intentional tort) cases. As the treatise observes, “[j]ust as malicious assaults by co-employees were ruled out [of coverage] as intentional and personal, so sportive assaults were treated as something foreign to the inherent risks of the employment.” This is, of course, quite correct, but, more macroscopically, horseplay involves intentional conduct by somebody. Intentional conduct is not negligence (and it is obviously not accidental). It makes perfect sense that early workers’ compensation statutes, observing close fidelity to the precise quid pro quo scheme, would not have awarded compensation in what were essentially battery scenarios (at least seen from the perspective of the non-instigator). It also may explain in part why, even where horseplay has been determined an “incident of employment,” several jurisdictions continue to maintain the workers’ compensation rule that, only non-instigators of horseplay are covered. In a tort-battery regime, the instigator could have been the perpetrator of a battery. Awarding compensation to non-instigators on an “incident of employment” theory may, initially at least, have been a kind of compromise necessary to maintain the integrity of the system.

It may also be worth mentioning that the continued instigator/non-instigator split on horseplay in workers’ compensation corresponds interestingly with developments concerning the tort liability of employers for the intentional acts of their employees. The general rule historically has been that an employer is almost categorically not vicariously liable for the intentional tort of an employee who is not actuated by a purpose to serve the employer and motivated solely by a desire to satisfy the employee's own purposes. (For example, an employee's intentionally criminal conduct typically indicates a departure from conduct within the scope of employment). But under a more holistic “characteristic activities” standard several courts have concluded that some otherwise intentional employee conduct can be attributed to employers. “Sure, it looks like an intentional tort but this person does stuff like this all the time, and the employer knew it.” (Think of the bar room bouncer). This idea expands the potential for employer liability for intentional torts like batteries, and it makes sense that where employer liability for battery expands some courts/jurisdictions might respond by attempting to cover obviously “intentional conduct” within the workers’ compensation rubric (by, for example, requiring super-duper intentional conduct to remove an injury from the workers’ compensation lockbox). I would also note that Wyoming’s statute has always explicitly conferred immunity on employers for all tortious conduct, which makes for good sport for this workers’ compensation/torts prof: my employer comes into work one day and intentionally shoots me in the leg. Discuss.

It also makes sense that states with expanded battery liability would be more likely to include horseplay instigators as well as non-instigators into the workers’ compensation fold.

The moral of the story? Hypothetical questions are cool! No, that’s not it. I know. Be careful when you kick: you may set off an entire chain of legal history!

Back to course prep!

Michael C. Duff

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