Decision in Simms Calls Virginia “Horseplay Doctrine” Into Question

September, 2009  | By Kathryn Lea Harman

On July 28, 2009, the Virginia office of Semmes won an appellate decision in Simms v. Ruby Tuesday, Inc., that could spell the end of the “horseplay doctrine” in Virginia Workers’ Compensation cases. Prior to Simms, the question in claims brought by employees injured by other employees was whether the injured employee was a participant in or an innocent victim of horseplay. A claimant able to prove that he was not a participant thereby established that his injury “arose out of” his employment, and that he was entitled to compensation.

The Virginia Court of Appeals agreed with Semmes’ argument that the Virginia Supreme Court’s decisions in Hilton v. Martin and preceding cases mandates that in employee assault cases, the focus must instead be on whether the injured employee was subjected to harmful contact because of his or her employment, and whether the conditions of employment required the behavior leading to the injury. The Court of Appeals held that the claimant’s injury, which resulted from co-workers throwing ice at him, did not arise out of his employment. While not overturning the “horseplay doctrine” cases, the Court of Appeals stated that the doctrine had been called into “serious question”.