Marino v. Winn Dixie Louisiana, Inc.

• Decision Date: 04 April 1983
• Docket Number: No. CA-0349,CA-0349
• Citation: 433 So.2d 1075
• Parties: Joseph MARINO, individually and on behalf of his minor child, Domenick J. Marino v. WINN DIXIE LOUISIANA, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 1075

433 So.2d 1075

Joseph MARINO, individually and on behalf of his minor child, Domenick J. Marino v. WINN DIXIE LOUISIANA, INC.

No. CA-0349.

Court of Appeal of Louisiana Fourth Circuit.

April 4, 1983.

Rehearing Denied July 26, 1983.

Peter Frank Liberto, New Orleans, for plaintiff-appellant.

William Bassett, Jr., River Ridge, for defendant-appellee.

Before AUGUSTINE, WARD and WILLIAMS, JJ.

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 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.

Plaintiff urges that Domenick's injury occurred during the course and scope of his employment and therefore arose out of his employment. We do not find this argument to be persuasive. The cases cited by plaintiff all deal with some degree of "horseplay" involving the injured party in each case. ¹ Each of these cases holding that "horseplay" was a compensable risk contemplated under the Workers' Compensation statutes can be factually distinguished from the case at bar. In Schexneider, Brown, Singleton, Blackway and Bennett, the employees were still on the clock and engaged in the course of their employment. Additionally, the incident of "horseplay" arose out of their employment situation. Only in Favre, supra, does the factual situation remotely appear similar to the case at bar. There the plaintiff had returned from washing-up after completing his work for the day in a textile mill, and was cleaning his machine, when another employee threw a fruit seed into his face blinding him. While the court there granted recovery based upon the theory that "horseplay" was an expectable incident of work, we note the distinction that at the time of the injury, the plaintiff in Favre, was engaged in an activity which was undisputably within the course of his employment and that his injury did in fact arise from his employment. In the Favre opinion, the court, however, did not indicate whether the employees had already clocked out from their day's work or were engaged in clean-up activities before they clocked out. In the instant case, Domenick and his co-workers had finished cleaning up their work area, both inside and outside the store, they had also clocked out, and the assistant manager in charge that night had dismissed them for the day. Then while hanging around the parking lot next to some of the other employee's cars, Domenick attempted his kick and fell to the ground as he landed. We find no amount of liberal construction will allow us to conclude that Domenick was engaged in the course and scope of his employment at the time of his injury, or that it even remotely arose from his employment.

It is clear that injuries suffered by an employee merely occurring at the...