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Reckless Prank By Co-Employee Does Not Permit Victim To Pursue Civil Suit

By on April 18, 2019 in Workers' Comp with 0 Comments

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.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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