Simms v. Ruby Tuesday, Inc.

Present: Hassell, C.J., Koontz, Kinser, Goodwyn, Millette, and
Mims, JJ., and Russell, S.J.

MATTHEW EDWARD SIMMS
OPINION BY
v. Record No. 091762 JUSTICE S. BERNARD GOODWYN
January 13, 2011
RUBY TUESDAY, INC., ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal of a worker’s compensation proceeding, we

consider whether the actual risk test an7alysis articulated in

Hilton v. Martin, 275 Va. 176, 654 S.E.2d 572 (2008),

materially changed the “innocent victim of horseplay” law

previously articulated and applied by the Court of Appeals of

Virginia and the Virginia Workers’ Compensation Commission.

Background

This case arises from a claim filed by Matthew Edward

Simms (Simms) with the Virginia Workers’ Compensation

Commission (the Commission), in which he sought coverage under

the Workers’ Compensation Act, Code § 65.2-100 et seq. (the

Act), for an injury that occurred during, and at the place of,

his employment. Simms was employed as a server at a national

chain restaurant in Manassas. During his work shift, Simms

walked into the kitchen to enter an order into a computer and

to print a check for a customer. There were three other

employees in the kitchen at that time who started throwing ice

at him. Simms testified that he knew the employees who were
throwing ice, that he had contact with them outside of work,

and that he considered them friends.

Simms testified that after a piece of ice hit him in the

back of the head, he turned around. As he turned around, he

felt a pain in his left shoulder. Simms continued to be hit

in the chest and face with pieces of ice and tried to lift his

hand to block a piece of ice from hitting him in the face. As

he lifted his left arm, while holding the book he used to take

orders, he felt his shoulder dislocate.

Simms was taken to a hospital where he received treatment

for the injury, and was referred to a doctor for follow-up

treatment. Simms alleged that after the injury, he was unable

to use his shoulder in everyday activities, and he was unable

to work for a period of time. He also claimed that he later

required additional medical treatment for his injury,

including surgery, which resulted in an additional period of

temporary total disability.

After hearing testimony and reviewing Simms’ medical

records and deposition testimony, a deputy commissioner of the

Commission concluded that Simms was the innocent victim of

horseplay perpetrated by co-employees. Citing Dublin Garment

Co. v. Jones, 2 Va. App. 165, 342 S.E.2d 638 (1986), the

deputy commissioner concluded that Simms sustained an injury

by accident arising out of and in the course of his employment

2
and that Simms’ injury was compensable under the Act. Simms

was awarded a 4-day period of temporary total disability.

However, prior to his injury at work, Simms’ shoulder had

dislocated on several occasions, unrelated to his employment,

and the deputy commissioner found that the surgery Simms later

had on the shoulder and the following period of temporary

total disability had not been proven to be related to his

injury at work.

Both parties appealed to the full Commission. The

Commission stated that even though Simms was an innocent

victim of horseplay, the Hilton decision had “materially

changed the ‘innocent victim of horseplay’ law.” The

Commission stated that there was “no connection between the

conditions under which the employer required the work to be

performed and the assault by the co-workers” as required by

Hilton and, reversing the deputy commissioner, ruled that even

though Simms was an innocent victim of workplace horseplay,

his injury did not arise out of his employment. Simms

appealed to the Court of Appeals.

On appeal, the Court of Appeals affirmed the Commission.

Simms v. Ruby Tuesday, Inc., 54 Va. App. 388, 389, 679 S.E.2d

555, 556 (2009). The Court of Appeals agreed with the

Commission’s analysis that Hilton called into question “the

continued viability of the horseplay doctrine as set forth in

3
Dublin.” Id. at 394, 679 S.E.2d at 558. It therefore

declined to apply the horseplay doctrine and concluded that

even though Simms was the innocent victim of horseplay, the

“arising out of” prong of the test for whether an injury comes

within the Act requires that there be an additional causal

connection between the employee’s injury and the conditions

under which the employer requires the work to be done. Id. at

392-93, 679 S.E.2d at 557-58. The Court of Appeals affirmed

the Commission’s finding that no such causal connection

existed in Simms’ case, and that Simms’ injuries, therefore,

did not arise out of his employment, and were not covered

under the Act. Id. at 394, 679 S.E.2d at 558.

The Horseplay Doctrine

Before we analyze this case, it is helpful to review the

history and policy of the horseplay doctrine.

Before the adoption of workers’ compensation laws,

employees lost approximately eighty percent of their cases.

Samuel B. Horovitz, Assaults and Horseplay Under Workmen’s

Compensation Laws, 41 Ill. L. Rev. 311, 311 (1946). “The

reason for this was clear: the doctrines of contributory

negligence, assumption of risk, fellow-servant, proximate

cause, intervening cause, scope of employment, and other

narrow common law theories weighed so heavily against the

worker that the hands of the later common law courts were

4
tied.” Id. Recognizing the need for a new standard of

liability, states began enacting workers’ compensation laws as

early as 1911, whereby “liability depended not on negligence,

not on fault, but on the relation of the injury to the

employment, or more specifically, on the injury ‘arising out

of and in the course of employment.’ ” Id. This Commonwealth

was no different. In 1918, the General Assembly adopted the

Act “for the beneficent purpose of attaining a humanitarian

end which had, hitherto, been frustrated by the inexorable

rules of the common law.” A. Wilson & Co. v. Mathews, 170 Va.

164, 167, 195 S.E. 490, 491 (1938).

Soon after these workers’ compensation laws were enacted,

commissions and courts were called upon to answer the very

question this Court confronts today: whether innocent,

nonparticipating victims of horseplay are entitled to

coverage. See Horovitz, supra, at 314-15. Early on,

commissions attempted to make awards to such victims. Id. at

315. But those awards were often reversed when they reached

the highest courts. Id. For example, in Lee’s Case, 134 N.E.

268, 269 (Mass. 1922), the Supreme Judicial Court of

Massachusetts reversed an award to a worker who was injured

when he was knocked down by his co-workers while they were

fooling around, finding that “[s]uch acts, whether done in a

spirit of play or from a malicious motive, have no relation

5
whatever to the employment; and they are wholly outside the

scope of the employment of those who caused the injury.”

Not all courts, however, followed the rule applied in

Lee’s Case. Indeed, it was flatly rejected by then-Judge

Cardozo in Leonbruno v. Champlain Silk Mills, 128 N.E. 711

(N.Y. 1920). There, a worker lost his eyesight when he was

hit by an apple that was thrown “in sport” by another worker.

Id. at 711. The worker “did not participate in the horseplay,

and had no knowledge of it till injured.” Id. In determining

that the injury arose out of the worker’s employment, Judge

Cardozo reasoned:

Whatever men and boys will do, when gathered
together in such surroundings, at all events if it
is something reasonably to be expected, was one of
the perils of his service. . . . [I]t was but
natural to expect them to deport themselves as young
men and boys, replete with the activities of life
and health. For workmen of that age or even of
maturer years to indulge in a moment’s diversion
from work to joke or play a prank upon a fellow
workman, is a matter of common knowledge to every
one who employs labor. The [worker] was injured, not
merely while he was in a factory, but because he was
in a factory, in touch with associations and
conditions inseparable from factory life. The risks
of such associations and conditions were risks of
the employment.

Id. (internal quotation marks and citations omitted).

Eventually, courts began to “s[ee] the logic of

[Cardozo’s] argument” and overrule their prior decisions

denying coverage to innocent, nonparticipating victims of

horseplay. Horovitz, supra, at 319. And “[i]t is now clearly

6
established that the non-participating victim of horseplay may

recover compensation.” 2 Arthur Larson & Lex K. Larson,

Larson’s Workers’ Compensation Law § 23.02 (2010); see also

Coleman v. Armour Swift-Eckrich, 130 P.3d 111, 116 (Kan. 2006)

(overturning nearly 100 years of precedent and adopting the

horseplay doctrine after being “persuaded by the overwhelming

weight of . . . authority in . . . sister states and current

legal commentary”).

In such cases for over 90 years, the Commission and its

predecessor Commission have held that the innocent non-

participating victim of workplace horseplay is entitled to

workers’ compensation benefits. See, e.g., Allen v. Sloane &

Co., 2 O.I.C. 449, 454 (1920). Similarly for nearly 25 years,

the courts of this Commonwealth have approved the rationale in

these horseplay cases. See Dublin Garment Co., 2 Va. App. at

167-68, 342 S.E.2d at 639.

Analysis

An injury comes within the scope of the Act if it results

from an accident arising out of and in the course of the

injured employee’s employment. Code § 65.2-101; see Hilton,

275 Va. at 180, 654 S.E.2d at 574. “When an employee sustains

such an injury, the Act provides the sole and exclusive remedy

available against the employer.” Butler v. Southern States

Cooperative, Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772

7
(2005); see Code § 65.2-307(A). In the instant case, it is

undisputed that Simms’ injury resulted from an accident “in

the course of” his employment at the restaurant. Thus,

coverage of his injury under the Act hinges upon whether

Simms’ injury “aris[es] out of” his employment.

Simms argues that the Court of Appeals erred in applying

the Hilton analysis in this case, which involves an innocent

victim of horseplay. Simms contends that Hilton is not

controlling in determining whether his injury arose out of his

employment, because Hilton concerned an assault. We agree.

As pertinent to the issue presented in the present case,

the Court of Appeals had this to say regarding our decision in

Hilton:

Upon our review of Hilton, we believe the
continued viability of the horseplay doctrine as set
forth in Dublin is called into serious question. It
is clear that Hilton involved a playful act,
perpetrated upon a non-participating employee by a
co-worker, resulting in a willful or unlawful
touching, and causing subsequent injury to the
employee. Notwithstanding the fact that Hilton
involved an innocent victim of horseplay, the
Supreme Court concluded that such an injury did not
arise out of employment. Under these circumstances,
we decline [Simms’] invitation to apply the
horseplay doctrine in the present case. Thus, we
conclude that Hilton requires that we find [Simms],
who was an innocent victim of horseplay, did not
sustain an injury that arises out of [his]
employment.

Simms, 54 Va. App. at 394, 679 S.E.2d at 558 (citation

omitted).

8
 The Court of Appeals draws many conclusions not supported

by our analysis in Hilton. In that case, the claimant was

severely injured when a co-worker turned on the power to a

manual cardiac defibrillator, adjusted its energy to 150

joules, and touched the defibrillator paddles to her left

shoulder and left breast, while simultaneously activating

them. The claimant ultimately died of “electrocution and

cardiac arrest caused by being hit with a charged

defibrillator.” Hilton, 275 Va. at 178-79, 654 S.E.2d at 573

(internal quotation marks omitted). In Hilton, we did not

reference Dublin Garment Co. or the horseplay doctrine.

Contrary to the view of the Court of Appeals, we did not

conclude that the case “involved a playful act.” Rather, we

considered the co-worker’s act as an assault, id. at 178, 654

S.E.2d at 573, and relied upon a number of our prior cases

involving assaults upon employees to conclude that “‘[i]f the

assault is personal to the employee and not directed against

him as an employee or because of his employment, the

[resulting] injury does not arise out of the employment.’”

Id. at 180, 654 S.E.2d at 574 (quoting Richmond Newspapers v.

Hazelwood, 249 Va. 369, 373, 457 S.E.2d 56, 58 (1995)

(“goosing” by fellow employee considered an “assault” personal

to employee that did not arise out of the employment)). In

Hilton, we also referenced Reamer v. National Service

9
Industries, 237 Va. 466, 377 S.E.2d 627 (1989) (employee

raped); Metcalf v. A. M. Express Moving Systems, Inc., 230 Va.

464, 339 S.E.2d 177 (1986) (employee shot); and City of

Richmond v. Braxton, 230 Va. 161, 335 S.E.2d 259 (1985)

(employee sexually assaulted). Pelting a co-worker with ice

particles in a playful manner is readily distinguishable from

the assaults in those cases.

This Court has never addressed the issue of the

“horseplay doctrine.” The Court of Appeals and the Commission

have applied it to a certain subset of incidents when an

unsuspecting, nonparticipating claimant is injured by the

playful or joking actions of a co-worker. For the reasons

stated in the Leonbruno decision by Judge Cardozo, in the

worker’s compensation context, the instance when a non-

participating employee is injured by horseplay encountered in

the workplace is differentiated from and distinct from the

instance when a worker is injured by an assault, although

“[i]t is hard to imagine a form of horseplay that causes

injury that is not [technically] either an assault or a

battery.” Park Oil Co. v. Parham, 1 Va. App. 166, 170, 336

S.E.2d 531, 534 (1985).

As we reiterated in Hilton, this Court applies “the

‘actual risk’ test” to determine if an injury arises out of

employment. 275 Va. at 180, 654 S.E.2d at 574. Under the

10
actual risk test, an injury comes within the Act “only if

there is a causal connection between the employee’s injury and

the conditions under which the employer requires the work to

be done.” Id.; see also Butler, 270 Va. at 465, 620 S.E.2d at

772; Olsten of Richmond v. Leftwich, 230 Va. 317, 319, 336

S.E.2d 893, 894 (1985). Concerning the actual risk test, our

Court has stated on numerous occasions:

Under this test, if the injury can be seen to have
followed as a natural incident of the work and to
have been contemplated by a reasonable person
familiar with the whole situation as a result of the
exposure occasioned by the nature of the employment,
then it arises "out of" the employment. But [the
applicable test] excludes an injury which cannot
fairly be traced to the employment as a contributing
proximate cause and which comes from a hazard to
which the workmen would have been equally exposed
apart from the employment. The causative danger
must be peculiar to the work and not common to the
neighborhood. It must be incidental to the
character of the business and not independent of the
relation of master and servant. It need not have
been foreseen or expected, but after the event it
must appear to have had its origin in a risk
connected with the employment, and to have flowed
from that source as a rational consequence.

Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686

(1938) (quoting In re: McNichol, 102 N.E. 697, 697 (Mass.

1913)); Combs v. Virginia Elec. & Power Co., 259 Va. 503, 510,

525 S.E.2d 278, 282 (2000); Hazelwood, 249 Va. at 372-73, 457

S.E.2d at 58; Metcalf, 230 Va. at 468, 339 S.E.2d at 180;

Braxton, 230 Va. at 164, 335 S.E.2d at 261; R & T Investments,

11
Ltd. v. Johns, 228 Va. 249, 252-53, 321 S.E.2d 287, 289

(1984).

Applying the actual risk test, injuries to a non-

participating innocent victim that result from workplace

horseplay have been held to be an actual risk of the workplace

because “the work place creates [the] situation” that results

in the injury. Park Oil, 1 Va. App. at 171, 336 S.E.2d at

534. “The theory of recovery is that the work place creates a

situation where workers, being what they are – fallible and

sometimes playful human beings – will from time to time engage

in pranks, some of which are dangerous.” Id. In essence, the

playful or joking actions of the fellow employee are found to

be an actual risk of the employment because horseplay is a

natural incident of work contemplated by a reasonable person

familiar with the whole situation, as a result of the exposure

occasioned by the nature of the employment. Therefore, unlike

assault cases where a causal connection needs to be proven

between the assault and the employment, when a fellow employee

engages in horseplay by doing something in a playful or joking

manner that injures an innocent nonparticipating co-worker,

such injury is inherent to the injured co-worker’s employment

or is directed toward the co-worker as an employee. See

Dublin Garment Co., 2 Va. App. at 168, 342 S.E.2d at 639. The

Court of Appeals stated the Virginia horseplay doctrine as

12
follows: “[W]hen an employee is an innocent nonparticipating

victim of a co-worker’s playful or joking actions, any

resulting injuries are compensable.” Id. at 167, 342 S.E.2d

at 639 (internal quotation marks omitted).

The workplace horseplay doctrine has withstood the test

of time nationally since it first was enunciated by Judge

Cardozo. It has been accepted in the Commonwealth without

controversy; the General Assembly has had twenty-five years to

legislatively change the holding in Dublin Garment Co. and has

not done so. In deciding Hilton, it was not our intention to

scuttle the horseplay doctrine, or to impose any additional

burden of proof upon claimants found to be the innocent

victims of workplace horseplay. The analysis stated in

Hilton, regarding the actual risk test, is applicable in

worker’s compensation matters concerning an assault, not those

involving an innocent victim of horseplay. ∗

Accordingly, we will reverse the Court of Appeals and

remand the case to the Court of Appeals with direction to

remand the case to the Commission so that the Commission may

∗
See Hodges v. Bassett Furniture Co., 2 O.I.C. 466, 469-
70 (1920) (the present Commission’s predecessors, the
Industrial Commission, distinguished between cases involving
horseplay and those involving “unprovoked . . . felonious
assault upon one employee by another,” finding that the
contrasting situations called for application of different
rules).

13
consider the claim consistent with the law as stated in this

opinion.

Reversed and remanded.

JUSTICE MIMS, with whom SENIOR JUSTICE RUSSELL joins,
concurring.

The Court lays its finger on the error made by the

Workers’ Compensation Commission and Court of Appeals: those

tribunals misinterpreted the scope of our holding in Hilton v.

Martin, 275 Va. 176, 654 S.E.2d 572 (2008), and looked for a

causal connection between an assault and the employment in

this case. But there was no underlying assault.

In Park Oil Co. v. Parham, 1 Va. App. 166, 336 S.E.2d 531

(1985), the Court of Appeals opined that “[i]t is hard to

imagine a form of horseplay that causes injury that is not

either an assault or a battery.” Id. at 170, 336 S.E.2d at

534. That dictum is not accurate. While it is difficult to

imagine horseplay that causes injury that does not involve

contact or the apprehension of contact, not all contact is

battery and not all apprehension of contact is assault.

Rather, a battery consists of contact “done in a rude,

insolent, or angry manner,” Crosswhite v. Barnes, 139 Va. 471,

477, 124 S.E. 242, 244 (1924), “which is neither consented to,

excused, nor justified.” Koffman v. Garnett, 265 Va. 12, 16,

574 S.E.2d 258, 261 (2003). Likewise, an assault is “an act

intended to cause either harmful or offensive contact with

14
another person or apprehension of such contact, and that

creates in that other person’s mind a reasonable apprehension

of an imminent battery.” Id.; accord Etherton v. Doe, 268 Va.

209, 213, 597 S.E.2d 87, 89 (2004).

Simms’ co-workers neither battered nor assaulted him.

They did not pelt him with ice in a rude, insolent, or angry

manner. Their conduct was jocular and playful. They did not

intend to cause him harm or offense, and Simms did not

apprehend the contact to be rude, insolent, angry, harmful, or

offensive. These facts clearly are distinguishable from those

in Hilton, where the victim “screamed, ‘Get those away from

me,’ and pushed [the assailant] back” in an attempt to escape.

275 Va. at 179, 654 S.E.2d at 573. These facts are much

closer to those in Dublin Garment Co. v. Jones, 2 Va. App.

165, 342 S.E.2d 638 (1986), where the injured employee

“interpreted [the contact] as a ‘friendly gesture.’ ” Id. at

166, 342 S.E.2d at 638. 1

Thus, there are two clear, distinct lines of cases that

may apply when a worker is injured by a co-worker. Where the

contact or apprehension of contact giving rise to the injury

is not a common law assault or battery, the injury may result

1
By comparing the facts of this case with Hilton and
Dublin Garment Co., I do not suggest that whether workplace
contact is horseplay turns on the perspective of the injured
employee. Nevertheless, the common law intentional torts of

15
from mere horseplay. In such cases, a finding that the injury

does result from horseplay satisfies the actual risk test for

the reasons enunciated by the majority: “the work place

creates a situation where workers . . . will from time to time

engage in pranks, some of which are dangerous.”

Alternatively, where the injury arises from a common law

assault or battery, as in the line of cases culminating with

Hilton, 2 the actual risk test requires a causal connection

between the tort and the employment.

This rule of law is pragmatic and sensible. Where there

is a tort not causally connected to the injured employee’s

employment, liability rests on the tortfeasor rather than the

employer. Conversely, where the tort is causally connected to

the employment or where there is no tort at all, the injury is

assault and battery require some consideration of the intent
of the perpetrator and the perception of his victim.
2
It is clear that Hilton presupposes a tortious act:
When an “ ‘assault is personal to the employee and not
directed against him as an employee or because of his
employment, the [resulting] injury does not arise out of the
employment.’ ” 275 Va. at 180, 654 S.E.2d at 574 (quoting
Richmond Newspapers v. Hazelwood, 249 Va. 369, 373, 457 S.E.2d
56, 58 (1995) (emphasis added). “An injury resulting from an
assault arises out of the injured person's employment when it
is directed at the victim as an employee.” Id. at 181, 654
S.E.2d at 574-75 (emphasis added and original emphasis
omitted). Accordingly, the Court’s comment in that case that
“[i]t is immaterial whether the assailant's subjective
motivation is playful, amorous, vindictive, or hostile,” id.
at 181, 654 S.E.2d at 574, is limited to those contexts in
which a tortious act already has been determined.

16
within the scope of the Workers’ Compensation Act. 3 Because

the Commission overlooked this distinction and the Court of

Appeals affirmed its error, I concur in the judgment of this

Court reversing the Court of Appeals.

3
Thus, in deciding whether the Workers’ Compensation Act
provides the exclusive remedy for an employee injured as a
result of alleged workplace horseplay, the Commission or court
hearing the case must first determine whether the cause of the
injury amounted to a common law assault or battery.

17