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Horseplay during a Lull in the Workday Found Compensable (Part 2): Major Deviation from Work

The New Jersey courts, like the court in South Dakota, tend to focus on whether horseplay constitutes a major deviation from work when assessing compensability of injuries. In Trotter v. City of Monmouth, 144 N.J. Super. 430 (App. Div.), certif. denied, 73 N.J. 42 (1976) the Appellate Division addressed the issue of major deviation.

In Trotter, the petitioner was a county road department worker. During a break from cutting grass in the summer heat, the petitioner and several co-workers began throwing water at one another to cool off. The petitioner interrupted this water fight by driving a co-workers motorcycle that had been parked nearby on and off county property. The petitioner eventually drove the motorcycle up a hill, lost control of it and crashed suffering various injuries. The employee’s petition was denied by the Appellate Division because:

  1. The motorcycle was not supplied by the employer;

  2. The motorcycle was not equipment used in the course of the employer’s business; and,

  3. The petitioner’s conduct was so far a deviation as to constitute an abandonment of his employment.

When discussing the Trotter case, the Appellate Division turned to Professor Larson’s Workmen’s Compensation Law guidebook, which assesses the gravity of a deviation from employment based upon the following factors:

  • The extent and seriousness of the deviation;

  • The completeness of the deviation (whether it related to petitioner’s performance of duty or involved an abandonment of duty);

  • The extent to which the practice of horseplay had become an accepted part of the employment; and

  • The extent to which the nature of the employment may be expected to include some such horseplay.

Unfortunately, the application of the major/minor deviation test is inherently subjective and doesn’t add much order to the chaos. Regardless of the occupation or working conditions, a certain amount of horseplay is always to be expected in any workplace. If the horseplay rises to the level of a major deviation, like it did in Trotter, you can expect workers’ compensation benefits to be denied.

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume V, Number 243


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Stark & Stark’s Litigation group includes accomplished trial lawyers in both bench and jury trials, appeals, and administrative proceedings. They are experienced arbitrators and mediators. These lawyers are licensed in a number of jurisdictions including New Jersey, Pennsylvania, New York, Delaware, and beyond.

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