Simms v. Ruby Tuesday Inc.

281 Va. 114

704 S.E.2d 359

Matthew Edward SIMMS

v.RUBY TUESDAY, INC., et al.

Record No. 091762.

Supreme Court of Virginia.

Jan. 13, 2011.

Diane C.H. McNamara, Manassas, for appellant.

Kathryn Lea Harman (Semmes, Bowen & Semmes, Vienna, on brief), for appellees.Virginia Trial Lawyers Association (Craig B. Davis; Wesley G. Marshall; Emroch & Kilduff, Richmond, on brief), in support of appellant.Present: HASSELL, C.J., KOONTZ, KINSER, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL, S.J.OPINION BY Justice S. BERNARD GOODWYN.

In this appeal of a worker's compensation proceeding, we consider whether the actual risk test analysis articulated in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008), materially changed the “ innocent victim of horseplay” law previously articulated and applied by the Court of Appeals of Virginia and the Virginia Workers' Compensation Commission.

Background

This case arises from a claim filed by Matthew Edward Simms (Simms) with the Virginia Workers' Compensation Commission (the Commission), in which he sought coverage under the Workers' Compensation Act, Code § 65.2–100 et seq. (the Act), for an injury that occurred during, and at the place of, his employment. Simms was employed as a server at a national chain restaurant in Manassas. During his work shift, Simms walked into the kitchen to enter an order into a computer and to print a check for a customer. There were three other employees in the kitchen at that time who started throwing ice at him. Simms testified that he knew the employees who were throwing ice, that he had contact with them outside of work, and that he considered them friends.

Simms testified that after a piece of ice hit him in the back of the head, he turned around. As he turned around, he felt a pain in his left shoulder. Simms continued to be hit in the chest and face with pieces of ice and tried to lift his hand to block a piece of ice from hitting him in the face. As he lifted his left arm, while holding the book he used to take orders, he felt his shoulder dislocate.

Simms was taken to a hospital where he received treatment for the injury, and was referred to a doctor for follow-up treatment. Simms alleged that after the injury, he was unable to use his shoulder in everyday activities, and he was unable to work for a period of time. He also claimed that he later required additional medical treatment for his injury, including surgery, which resulted in an additional period of temporary total disability.

After hearing testimony and reviewing Simms' medical records and deposition testimony, a deputy commissioner of the Commission concluded that Simms was the innocent victim of horseplay perpetrated by co-employees. Citing Dublin Garment Co. v. Jones, 2 Va.App. 165, 342 S.E.2d 638 (1986), the deputy commissioner concluded that Simms sustained an injury by accident arising out of and in the course of his employment and that Simms' injury was compensable under the Act. Simms was awarded a 4–day period of temporary total disability. However, prior to his injury at work, Simms' shoulder had dislocated on several occasions, unrelated to his employment, and the deputy commissioner found that the surgery Simms later had on the shoulder and the following period of temporary total disability had not been proven to be related to his injury at work.

Both parties appealed to the full Commission. The Commission stated that even though Simms was an innocent victim of horseplay, the Hilton decision had “materially changed the ‘innocent victim of horseplay’ law.” The Commission stated that there was “no connection between the conditions under which the employer required the work to be performed and the assault by the co-workers” as required by Hilton and, reversing the deputy commissioner, ruled that even though Simms was an innocent victim of workplace horseplay, his injury did not arise out of his employment. Simms appealed to the Court of Appeals.

On appeal, the Court of Appeals affirmed the Commission. Simms v. Ruby Tuesdays, Inc., 54 Va.App. 388, 389, 679 S.E.2d 555, 556 (2009). The Court of Appeals agreed with the Commission's analysis that Hilton called into question “the continued viability of the horseplay doctrine as set forth in Dublin.” Id. at 394, 679 S.E.2d at 558. It therefore declined to apply the horseplay doctrine and concluded that even though Simms was the innocent victim of horseplay, the “arising out of” prong of the test for whether an injury comes within the Act requires that there be an additional causal connection between the employee's injury and the conditions under which the employer requires the work to be done. Id. at 392–93, 679 S.E.2d at 557–58. The Court of Appeals affirmed the Commission's finding that no such causal connection existed in Simms' case, and that Simms' injuries, therefore, did not arise out of his employment, and were not covered under the Act. Id. at 394, 679 S.E.2d at 558.

The Horseplay Doctrine

Before we analyze this case, it is helpful to review the history and policy of the horseplay doctrine.

Before the adoption of workers' compensation laws, employees lost approximately eighty percent of their cases. Samuel B. Horovitz, Assaults and Horseplay Under Workmen's Compensation Laws, 41 Ill. L.Rev. 311, 311 (1946). “The reason for this was clear: the doctrines of contributory negligence, assumption of risk, fellow-servant, proximate cause, intervening cause, scope of employment, and other narrow common law theories weighed so heavily against the worker that the hands of the later common law courts were tied.” Id. Recognizing the need for a new standard of liability, states began enacting workers' compensation laws as early as 1911, whereby “liability depended not on negligence, not on fault, but on the relation of the injury to the employment, or more specifically, on the injury ‘arising out of and in the course of employment.’ ” Id. This Commonwealth was no different. In 1918, the General Assembly adopted the Act “for the beneficent purpose of attaining a humanitarian end which had, hitherto, been frustrated by the inexorable rules of the common law.” A. Wilson & Co. v. Mathews, 170 Va. 164, 167, 195 S.E. 490, 491 (1938).

Soon after these workers' compensation laws were enacted, commissions and courts were called upon to answer the very question this Court confronts today: whether innocent, nonparticipating victims of horseplay are entitled to coverage. See Horovitz, supra, at 314–15. Early on, commissions attempted to make awards to such victims. Id. at 315. But those awards were often reversed when they reached the highest courts. Id. For example, in Lee's Case, 240 Mass. 473, 134 N.E. 268, 269 (1922), the Supreme Judicial Court of Massachusetts reversed an award to a worker who was injured when he was knocked down by his co-workers while they were fooling around, finding that “[s]uch acts, whether done in a spirit of play or from a malicious motive, have no relation whatever to the employment; and they are wholly outside the scope of the employment of those who caused the injury.”

Not all courts, however, followed the rule applied in Lee's Case. Indeed, it was flatly rejected by then-Judge Cardozo in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711 (1920). There, a worker lost his eyesight when he was hit by an apple that was thrown “in sport” by another worker. Id. at 711. The worker “did not participate in the horseplay, and had no knowledge of it till injured.” Id. In determining that the injury arose out of the worker's employment, Judge Cardozo reasoned:

Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service.... [I]t was but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment's diversion from work to joke or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor. The [worker] was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment.

Id. (internal quotation marks and citations omitted).

Eventually, courts began to “s[ee] the logic of [Cardozo's] argument” and overrule their prior decisions denying coverage to innocent, nonparticipating victims of horseplay. Horovitz, supra, at 319. And “[i]t is now clearly established that the non-participating victim of horseplay may recover compensation.” 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 23.02 (2010); see also Coleman v. Armour Swift–Eckrich, 281 Kan. 381, 130 P.3d 111, 116 (2006) (overturning nearly 100 years of precedent and adopting the horseplay doctrine after being “persuaded by the overwhelming weight of ... authority in ... sister states and current legal commentary”).

In such cases for over 90 years, the Commission and its predecessor Commission have held that the innocent non-participating victim of workplace horseplay is entitled to workers' compensation benefits. See, e.g., Allen v. Sloane & Co., 2 O.I.C. 449, 454 (1920). Similarly for nearly 25 years, the courts of this Commonwealth have approved the rationale in these horseplay cases. See Dublin Garment Co., 2 Va.App. at 167–68, 342 S.E.2d at 639.

Analysis

An injury comes within the scope of the Act if it results from an accident arising out of and in the course of the injured employee's employment. Code § 65.2–101; see Hilton, 275 Va. at 180, 654 S.E.2d at 574. “When an employee sustains such an injury, the Act provides the sole and exclusive remedy available against the employer.” Butler v. Southern States Cooperative, Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772 (2005); see Code §...