Horseplay or Assault? The Thin Line of Intent

Joe Smith and Mary Jones are “horsing around” at work. Joe takes it a bit too far and Mary sustains an injury. Is Mary’s injury compensable? It is not necessarily a common fact pattern, but it happens – – an employee is injured due to the actions of a fellow co-worker. The Commission has, historically, endeavored to separate these injuries into two categories: (1) those sustained as a result of horseplay, and (2) those sustained as a result of assault.

The distinction is crucial to understanding a claimant’s burden of proof in these cases. For assault cases between two co-workers, a claimant must typically prove by a preponderance of the evidence that the assault was directed at the claimant as an employee or because of his or her employment. Said differently, if the assault was borne from something work-related, as opposed to from a purely personal nature, the injuries sustained will likely be compensable as long as the claimant was not an “initial aggressor” or “mutual combatant.” The claimant’s burden, then, is two-fold: (1) the claimant must prove that he or she was an innocent victim; and (2) that the assault was a result of a work-related issue. For horseplay cases, a claimant need only prove that he or she was an innocent victim of a co-worker’s prank. The theory behind horseplay cases, and justification for the lesser burden, is that the work environment is one in which employees will sometimes engage in pranks.

So, how can you distinguish horseplay cases from assault cases? The Commission’s recent opinion in Ocasio v. Camping World RV Sales, LLC, JCN VA00001870099 (Sept. 11, 2023) offers some insight. The claimant was assisting a customer when a fellow co-worker struck the claimant on the arm with the golf cart that he was driving. The co-worker intended to prank the claimant, to scare the claimant. The co-worker was even laughing as he drove the golf cart toward the claimant. The co-worker testified that he was simply playing a practical joke on the claimant and did not intend to injure the claimant. The co-worker did not intend to strike the claimant at all with the golf cart. The co-worker apologized to the claimant and the two shook hands following the incident. The co-worker testified that he held no hard feelings against the claimant, neither for personal nor work related reasons.

The Deputy Commissioner held that the co-worker’s actions rose to the level of assault, thereby making the claimant’s burden of proof a much more difficult one [1]. As there was no evidence introduced that the assault was work-related, the Deputy Commissioner denied the claimant’s Claim for Benefits.

The Full Commission, on appeal, recognized that the co-worker’s conduct in this case was both horseplay and assault. The co-worker’s actions clearly created, in the claimant’s mind, a reasonable apprehension of being struck by the golf cart. Indeed, the claimant was struck by the golf cart. Despite the elements of common law assault being present, the Commission viewed this as a horseplay case. “[T]he defining characteristic of horseplay is one of intent and that the conduct, however dangerous, was done in jest.” Ocasio at *8. Explaining its rationale further, the Commission went on to say:

Regardless of whether the claimant accurately divined Tazelaar’s intent [2], this was never an attempt to cause injury. Tazelaar’s motivation was not malice. He perpetrated a prank. We know this from Tazelaar’s testimony that it was intended as a joke; we know that both Tazelaar and his passenger were laughing as they drove at the claimant; and we know that Tazelaar either braked or steered by the claimant, thus avoiding the serious consequence of a direct collision.

Ocasio at *9. Finding that this was a horseplay case, the Full Commission reversed and remanded the Deputy Commission’s Opinion.

The dissent found that this was an assault case. “Tazelaar’s conduct, whether intended as a prank or not, placed the claimant in fear of serious bodily harm.” Ocasio at *10. While the dissent has a valid point, it tends to muddy the waters.

The majority’s opinion draws a clear, albeit thin, line between assault and horseplay cases – – and that line is the perpetrator’s intent. If the intent was to simply play a prank, with no intention of causing bodily harm, it’s horseplay. The dissent’s opinion erodes the boundary between assault and horseplay cases. Neither view is necessarily wrong, but the implications of each is significant for litigating these matters.

Given that this was a split opinion, it will be important to continue to monitor these opinions in the future. The Commission will either continue with the horseplay/assault distinction as voiced by the majority, or the dissent’s view could, in time, become the majority.

Due to the complexity of these cases, and their extremely fact-specific nature, we recommend that adjusters contact defense counsel when one of these cases comes across their desk. As always, our highly skilled team of professionals are available and happy to answer and questions you may have.


[1] The claimant did file assault and battery charges against his co-worker, to which the claimant pled no contest to. This ultimately was a significant factor in the Deputy Commissioner’s Opinion, but not in the Full Commission’s.

[2] Tazelaar is the co-worker.

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