TIMES PUBLISHING CO. AND R. P. HEWITT & ASSOCIATES, APPELLANTS/CROSS-APPELLEES,
v.
EUGENE WALTERS, APPELLEE/CROSS-APPELLANT
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A 14-year-old newsboy was injured during a footrace with another youth while waiting for his regular shift to begin. The court affirmed the workers' compensation award, holding that the brief recreational activity during a work lull constituted a minor, insubstantial deviation from employment that did not disqualify the injury from coverage.
The court held that the deviation was insubstantial and the claimant remained in the course of employment. The injury arose out of employment and was therefore compensable, despite occurring during recreational horseplay. A momentary deviation during a work lull involving no abandonment of employment duties is not a substantial enough deviation to disqualify coverage.
[1] An injury sustained during horseplay may be compensable if the deviation from employment duties is insubstantial, does not involve abandonment of work, and was reasonably…
[2] The extent and seriousness of a deviation, the completeness of the deviation, whether similar activity was forbidden or tolerated, and the foreseeability of the activity…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the classification of horseplay as a substantial deviation precluding compensability depends on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation (whether it involved an abandonment of employment duties), (3) the extent to which similar activity had either been forbidden or had become an accepted or tolerated practice, and (4) the extent to which such horseplay may have been expected or reasonably foreseeable in the employment”
The court's multi-factor test for evaluating whether horseplay constitutes a compensable injury in workers' compensation cases.
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Join FLexlaw to unlock all legal intelligenceA 14-year-old newsboy arrived at his work station in the afternoon at a time when he could not yet obtain his papers for delivery because a 9-year-old…
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WENTWORTH, Judge.
The employer/carrier appeals and the claimant cross-appeals a worker’s compensation order, which we affirm.
The claimant, a 14-year old newsboy, arrived at his work station at a time in the afternoon when he had previously obtained papers for delivery to certain customers just before his regular shift, but was told by the 9-year old newsboy on duty that he could not have his papers at that time. During this enforced lull the claimant and another youth engaged in a footrace which resulted in injury to the claimant. Since the injury arose out of the footrace, the initial question is whether there occurred such a deviation as to take the activity outside the course of employment. See 1A Larson, The Law of Workmen’s Compensation, § 23.16 (1972).
In Boyd v. Florida Mattress Factory, Inc., 128 So. 2d 881 (Fla.1961), the claimant’s injury was held to be compensable despite the fact that it resulted from horseplay. See also, Publix Supermarkets, Inc. v. Murdock, IRC Order 2-3652 (Jan. 15, 1979), cert. denied, 379 So. 2d 208 (Fla. Dec. 17, 1979); Stitz v. City of Tampa, 4 FCR 182 (1960); Bramen v. Princeton Farms, Inc., 3 FCR 279 (1958), cert. denied, 106 So. 2d 240 (Fla. 3rd DCA 1958); Webb v. Perini, Walsh, Mills & Blythe Bros., 2 FCR 9 (1956). An examination of those opinions indicates that the classification of horseplay as a substantial deviation precluding compensability depends on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation (whether it involved an abandonment of employment duties), (3) the extent to which similar activity had either been forbidden or had become an accepted or tolerated practice, and (4) the extent to which such horseplay may have been expected or reasonably foreseeable in the employment. In 1A Larson, The Law of Workmen’s Compensation, § 23.65 (1972), the author suggests that when horseplay occurs during a lull in the work this factor is of considerable importance, since the deviation does not involve the abandonment of any work duties and may even be an expected consequence of a waiting period. See generally, Brannen, supra and Webb, supra.
The present case involves a momentary deviation without obvious danger which occurred during a lull in work with no abandonment of employment duties. Such conduct has been associated with employments utilizing employees lacking in maturity. Murdock, supra. The order on appeal appropriately notes that the claimant’s youth and energy were qualities directly contributing to his value to the appellant employer. When the relevant criteria are considered with the totality of the circumstances in this case, we find that the deputy commissioner did not err in his conclusions to the effect that the deviation was insubstantial, that the claimant remained in the course of his employment, and that the accident arose out of that employment.
Accordingly, the order appealed is affirmed.
ROBERT P. SMITH and LARRY G. SMITH, JJ., concur.
ON MOTION FOR REHEARING AND/OR CLARIFICATION
WENTWORTH, Judge.
The appellee/cross-appellant asserts in this motion for rehearing or clarification that § 440.14(5), Florida Statutes, should have been utilized in determining the claimant’s average weekly wage. The statute provides that:
If it be established that the injured employee was a minor when injured, and that under normal conditions his wages should be expected to increase during the period of disability the fact may be considered in arriving at his average weekly wages.
However, the appellee/cross-appellant failed to present sufficient evidence to establish that the minor claimant’s “wages should be expected to increase during the period of disability . . .” [e.s.]; § 440.14(5), Florida Statutes, is thus inapplicable in the circumstances of this case, as presented before the judge of industrial claims.
The motion for rehearing is denied.
ROBERT P. SMITH and LARRY G. SMITH, JJ., concur.
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B & B Cash Grocery Stores & Aetna Cas. & Sur. Co. v. Wortman, 431 So. 2d 171 (Fla. 1st DCA 1983)…pulling the trigger) and the conditions of the employment, nor was such an act incidental to or a natural consequence of the employment. On the other hand, we think the facts here relate more closely to those in Times Publishing Company v. Walters, 382 So. 2d 720 (Fla. 1st DCA 1980). In Walters, a fourteen year old newsboy was injured in a foot race which took place during an enforced lull. Examining the extent and seriousness of the deviation, the completeness of the deviation, the extent to which similar a…
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Greathead v. Asplundh Tree Expert Co., 473 So. 2d 1380 (Fla. 1st DCA 1985)…y compensation to an employee who, although he is “at work,” engages in playful activity which is substantial enough to amount to a deviation from his employment. City of Miami v. Granlund, 153 So. 2d 830 (Fla.1963); Times Publishing Co. v. Walters, 382 So. 2d 720 (Fla. 1st DCA 1980); and B & B Cash Grocery Stores v. Wortman, 431 So. 2d 171 (Fla. 1st DCA [*1383] 1983). A number of factors are relevant to the question of whether an employee’s “horseplay” is substantial enough to preclude compensability, includ…
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IVY H. Smith Co. & United States Fid. & Guar. Co. v. Kates, 395 So. 2d 263 (Fla. 1st DCA 1981)…deviation, 2) the completeness of the deviation, 3) the extent to which similar activity has been forbidden, accepted or tolerated, and 4) the extent to which the horseplay was expected or reasonably foreseeable. Times Publishing Company v. Walters, 382 So. 2d 720,721 Fla. 1st DCA (1980); Webb v. Perini, Walsh, Mills & Blythe Brothers, 2 FCR 9 (1956); Boyd v. Florida Mattress Factory, Inc., 128 So. 2d 881 (Fla.1961); Publix Supermarkets, Inc. v. Murdock, IRC Order 2-3652 (1979). When the horseplay is an insub…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boyd v. Fla. Mattress Factory, Inc., 128 So. 2d 881 (Fla. 1961)
- Princeton Farms, Inc. v. Florence Brannen as the widow of Emory Brannen, 106 So. 2d 240 (Fla. 3d DCA 1958)
- Dania Roofing Co. & Indem. Ins. Co. of N. Am. v. Craft, 106 So. 2d 240 (Fla. 3d DCA 1958)