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Appellate Division Rules that the Workers’ Compensation Act Bars Lawsuit against Firefighter for Firecracker Prank, as it was not an Intentional Wrong

By on April 12, 2019 in Liability with 0 Comments

Plaintiff Raymond Johns, a firefighter for the City of Linden, suffered injuries when he sat on a firecracker that was placed on a toilet seat as a prank by a fellow firefighter, Thomas Wengerter. In Johns v. Wengerter, 2019 N.J. Super. Unpub. LEXIS 730 (App. Div. April 1, 2019), the issue was whether Wengerter’s act of placing a firecracker on the toilet seat was an “intentional wrong” that exposed him and the City of Linden to liability outside of the Workers’ Compensation Act (“WCA”) for the injuries to plaintiff.

On November 27, 2015, Johns was on-duty as a firefighter at the firehouse for the City of Linden. He sat down on a toilet seat when he heard and felt an explosion under him. An inspection of the toilet seat found a small firecracker that was caused to detonate when Johns sat on the toilet seat. Johns sought medical treatment and was diagnosed with a second-degree burn on his scrotum and a contusion of his left testicle.  

Wengerter ultimately admitted to placing small firecrackers around the firehouse as a prank, but denied placing one on the toilet where Johns was injured. However, significant evidence was discovered on the record contradicting this denial, including Wengerter immediately apologizing to Johns after the incident.

Johns did not suffer any lost wages and the City paid all his medical expenses. Johns did not file a workers’ compensation claim, but did file a lawsuit against Wengerter for his injuries. A third-party complaint was subsequently filed by Wengerter against the City, alleging the City allowed a high degree of pranking among on-duty firefighters. After discovery, Wengerter and the City both moved for summary judgment, arguing the claims are barred by the exclusive remedy provision of the WCA. Plaintiff opposed both motions.

The trial court granted summary judgment in favor of Wengerter and the City. The trial court held that Wengerter’s prank was not an “intentional wrong,” but fell under the “horseplay and skylarking” provision of the WCA. Thus, Wengerter’s conduct fell within the score of his employment and Johns’ exclusive remedy was within the WCA. Johns subsequently appealed this order dismissing his complaint against Wengerter. No appeal was taken as to the City’s motion.

The Appellate Division agreed with the trial court’s ruling to dismiss the claims against Wengerter. The Court noted that the WCA is the exclusive remedy when a plaintiff is injured by a co-worker while within the scope of their employment. However, the exclusive remedy provision does not apply when a plaintiff is injured by a co-worker’s “intentional wrong.” The Court noted that an “intentional wrong” differed from gross negligence even though they would both overcome the exclusive remedy provision. For an act to constitute an “intentional wrong,” there must be a deliberate intention to harm someone, not merely one that may be constructed, or inferred, from a co-worker’s actions.

The Appellate Division also agreed with the trial court that Wengerter’s conduct amounted to only “horseplay or skylarking,” which did not so far deviate from work-related activities to infer that Wengerter abandoned his employment. The act was intentional but fell into the horseplay exception of the WCA: “The placement of a bang snap on a men’s room toilet falls within the realm of coworker horseplay intended to startle, but not injure, a coworker despite the unfortunate and unintended result in this instance. Wengerter’s acts took place at the workplace, while Johns and Wengerter were on duty, and involved, in part, an employer-owned fixture.”

The Court further delineated the difference between horseplay and an “intentional wrong” that would have taken the conduct out of the WCA. The Court failed to find any evidence on the record that would indicate that Wengerter acted with substantial certainty that this act would have caused harm to Johns. Wengerter’s conduct was found to be merely a common prank around the firehouse that did not have any history of inflicting any physical injury prior to the present matter. The record was also devoid of any evidence that Wengerter intentionally tried to harm Johns. The Appellate Division affirmed the trial court’s decision that Johns’ sole remedy was under the WCA. Wengerter’s conduct was “horseplay and skylarking” that did not amount to an “intentional wrong,” which would have exposed him to liability above and beyond that which is compensable under the WCA.

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Edward F. Kuhn, III, Esq.

About the Author

About the Author:

Mr. Kuhn focuses his practice in general defense litigation through the federal and state courts of New Jersey and Pennsylvania, with a concentration on tort defense, premises liability, products liability, Tort Claims Act defense, construction, estates, employment and professional malpractice. His clients include large and small business owners, municipalities and governmental entities, manufacturers, and their insurers. Prior to joining Capehart Scatchard, Edward served as a Law Clerk for Phelan, Hallinan, and Schmieg.

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