Marino v. Winn Dixie Louisiana, Inc.

433 So. 2d 1075, 1983 La. App. LEXIS 8887
Louisiana Court of Appeal·Decided April 4, 1983·No. No. CA-0349·Published

Opinion

WILLIAMS, Judge.

This appeal arises from a judgment in favor of defendant, Winn. Dixie of Louisiana, Inc., and against plaintiffs, Joseph Marino, individually and on behalf of his minor son, Domenick J. Marino, denying recovery for the personal injuries suffered by Domenick J. Marino.

Plaintiffs petitioned for Workers’ Compensation benefits and damages for personal injury and negligence arising out of an accident that injured Domenick J. Marino while he was engaged in “horseplay” with his fellow employees after work.

The trial court held that Domenick was not entitled to Workers’ Compensation as the injury was not work-related. From this judgment, plaintiff devolutively appealed. We affirm.

Domenick was employed by defendant as a part-time cashier. He and his co-workers were also required to sweep and mop the entire store as well as to clean up in the parking area in front of the store by removing any trash and cleaning up any grease spots that may have been left by customers’ cars.

On the day in question, Domenick and several co-workers had finished cleaning up and clocked out at approximately 10:47 P.M. They then walked out the front door and into the parking lot proceeding to the far side next to the street where several of their cars were parked. Domenick and his co-workers remained out in the parking lot for several minutes when, in a joking manner, Domenick attempted to execute a “karate high kick”. This is a kick, as we understood the testimony, where the aggressor leaps up with both feet, aiming at approximately head level, to strike his target. When Domenick tried to perform this kick, both feet left the ground, and as he landed, his legs gave out from underneath him, and he fell to the ground.

The assistant store manager on duty that night remained behind, to lock up, after Domenick and the other employees had left. He saw the entire incident from a window in the store. At trial, he testified that it was 15 or 20 minutes after the employees had clocked out that he noticed Domenick fall on the far side of the parking lot, approximately 50-60 feet from the front door of the store. He noticed that while the employees were in the parking lot they were “horsing around with karate-type stuff”. After the incident, the assistant manager went out and inspected the area where Domenick fell. He saw no trash or [1077] debris in the area in which Domenick fell, since the parking lot was cleaned up every day.

Ordinarily Domenick walked home from work, a short three or four blocks, in a direction opposite to where he was injured. Had Domenick gone directly home, at the time he clocked out from work, he would have made a right-angle turn from the front door of the store walking to a side street at the edge of the shopping center where defendant’s store was located. In this case, his injury prevented him from walking and the assistant store manager called his father to come pick him up and take him home.

Domenick had injured his left knee and was admitted into the hospital approximately two days later where surgery was performed. He remained in the hospital for eight days. The prognosis, after surgery, was that he had severely injured his knee as a result of the “high kick” and fall to the pavement. Medical testimony in the record indicates that Domenick has suffered, and will continue to suffer, approximately a 30% disability in his left knee as a result of this injury.

On appeal, plaintiff contends that the trial court erred in its decision on several key issues in the case: (1) failing to apply the proper law involving “horseplay” at work; (2) failing to apply the law applicable to accidents occurring on the premises immediately after work; (3) failure to find that Domenick’s injury occurred during the course and scope of his employment; (4) failure to liberally construe the Workers’ Compensation statute; and (5) failing to find that Domenick should have been found entitled to compensation benefits under the odd-lot doctrine.

“HORSEPLAY”

In general, “horseplay” occurring on the job and/or while engaged on the employer’s premises has generally been held to be compensable when the “horseplay” occurs during the course and scope of employment. That which is considered within the “course and scope of employment” is the critical issue. It has been defined as:

... an employee is acting in the course of his employment while he is actually engaged in his employer’s work even before or after working hours.

Favre v. Werk Press Cloth. Mfg. Co., 152 So. 694 (La.App.Orl.Cir.1934); Smith v. Walker, 35 So.2d 766 (La.App. 2d Cir.1948); Malone and Johnson, Worker’s Compensation Treatise, Section 167, at 337.

Generally “horseplay” is covered under the Workers’ Compensation statutes of this state. Most courts have recognized that practical joking and rough play are to be expected, particularly where employees are expected to work side by side. Schexneider v. General American Tank Co., 5 La.App. 84 (Orleans Cir.1926). This observation affords some basis to conclude that the risk of “horseplay” is one that may arise out of employment. However, there are two requirements that must be met before an accident occurring as a result of “horseplay” becomes compensable. The first is that the accident must result from “horseplay” arising out of the employment, and secondly the accident must occur during the course of employment. Malone and Johnson, Worker’s Compensation Treatise, Section 197, at 409. Where the employees have withdrawn from their employment for their own pleasure, the employee may be regarded as suffering injury outside the course of employment and recovery may be denied for that reason. Id.

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Marino v. Winn Dixie Louisiana, Inc., 433 So. 2d 1075, 1983 La. App. LEXIS 8887 (La. Ct. App. 1983).

433 So. 2d 1075 (Marino v. Winn Dixie Louisiana, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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