Innocent Victim of Horseplay Rule Affirmed by Virginia Supreme Court

Dawn E. Boyce, Esquire
February 14th, 2011
By: Dawn E. Boyce, Esquire

In Simms v. Ruby Tuesday, Inc., 2011 Va. LEXIS 17 (2011), the Virginia Supreme Court addressed whether an innocent victim of horseplay was eligible for compensation under the Workers’ Compensation Act. Although it had long been held that injuries suffered by innocent bystanders as a result of horseplay at the workplace were compensable, this precedent was called into doubt by the court in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008). The issue in Simms was whether the actual risk test analysis articulated in Hilton had materially changed the juris prudence related to innocent victims of horseplay at work. In Hilton, the Commission found that injuries did not arise out of the employment where a co-worker turned on the power of a manual cardiac defibrillator, adjusted its energy to 150 joules, and touched the defibrillator paddles to an innocent victim. The denial of compensation sent a ripple through the workers’ compensation community and led the Commission and Court of Appeals to start denying horseplay claims.

In Simms, the Virginia Supreme Court has declared that an interpretation of Hilton resulting in a denial of compensation to innocent horseplay victims is erroneous. In Simms, the worker, a server at the restaurant, was injured when three of his employees/friends began throwing ice at him. He turned while being pelted with ice and lifted his shoulder to deflect ice from his face. When he did so, he felt his shoulder dislocate. The full Commission and Court of Appeals denied the compensability of the related injuries based on Hilton, which many characterized as a horseplay case.

On appeal, the Virginia Supreme Court reversed, distinguishing the Hilton case as an assault case, not a horseplay case. In determining whether victims of assault are entitled to compensation, the court must determine whether or not the assault was directed at the victim because of his employment. If there is no connection to the employment, there is no entitlement to compensation. Unlike assault cases, the court found there was a causal connection between the work and horseplay holding, “[t]he playful or joking actions of the fellow employee are found to be an actual risk of the employment because horseplay is a natural incident of work contemplated by a reasonable person familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment.”

The Simms case is an important one, as it dispels many questions with regard to the breadth of the court’s holding in Hilton v. Martin. The question remains at what point horseplay becomes assault.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More