Firehouse Toilet Prank Lawsuit Subject to Workers Comp Exclusivity

A New Jersey firefighter who was injured in a firehouse prank in 2015, has lost his suit against the firefighter-perpetrator based upon the workers compensation exclusivity principle.

Raymond Johns, a Linden firefighter, was injured when a bang snap exploded as he sat down on a firehouse toilet. As explained by the court:

• On November 27, 2015, Johns was on duty at the firehouse.
• He was in the men’s bathroom when he sat down on a toilet and heard and felt an explosion beneath him.
• Johns examined himself for injury and discovered a significant amount of blood coming from the left side of his scrotum, on which a blood blister had formed.
• The remnants of an exploded bang snap, a small firework without a fuse that detonates when compressed, was discovered on the toilet.
• After an investigation, defendant Thomas Wengerter, a fellow City firefighter, admitted to having placed bang snaps in various places in the firehouse as a prank, although he later denied having placed a bang snap on the toilet.
• The record, however, contains significant evidence contradicting Wengerter’s denial, including his apology to Johns immediately after the incident.
• Shortly after being injured, Johns left work to be treated at a medical facility.
• He was diagnosed with a second-degree burn on his scrotum and a contusion of the left testicle.
• He was thereafter placed off duty. He returned to work on December 9, 2015.
• Johns suffered no lost wages, and the City paid all his medical expenses.
• He did not file a workers’ compensation claim.
• Wengerter was suspended for the incident.

Johns sued Wengerter for his injuries. Wergerter raised a two-pronged defense. First he claimed Johns’ injury occurred while both were acting within the scope of their employment and thus the suit was barred by the NJ Workers’ Compensation Act which makes comp the “exclusive remedy” for this sort of work related injury.

Second, Wengerter claimed that because the Linden Fire Department allowed pranking among on-duty firefighters, the city should be required to pay for any damages that he might be liable for. He therefore brought the city into the suit by filing a third-party complaint.

The trial court ruled in Wengerter’s favor on the workers comp exclusivity defense despite Johns’ argument that the “intentional wrong” exception. The court also dismissed the city from the suit. Johns appealed to the Appellate Division of the New Jersey Superior Court.

In a ruling handed down today, the appellate division upheld the trial court. Quoting from the decision:

• [T]he trial court concluded that Johns was harmed as the result of a coworker’s prank within the meaning of the “horseplay or skylarking” provision of the WCA. N.J.S.A. 34:15-7.1. That statute provides that “[a]n accident to an employee causing his injury or death, suffered while engaged in his employment but resulting from horseplay or skylarking on the part of a fellow employee, not instigated or taken part in by the employee who suffers the accident, shall be construed to have arisen out of and in the course of the employment of such employee and shall be compensable under the act[.]”
• The trial court also concluded that Wengerter’s conduct was not an “intentional wrong,” within the meaning of N.J.S.A. 34:15-8.
• This appeal followed. Johns argues that the trial court erred in granting summary judgment to Wengerter because genuine issues of material fact exist with respect to whether: (1) Wengerter was acting in the scope of his employment when he set up the prank; and (2) Wengerter’s acts constituted an intentional wrong within the meaning of N.J.S.A. 34:15-8.1
• An employee commits an “intentional wrong” under N.J.S.A. 34:15-8 when he acts with “substantial certainty” that harm will occur.
• The record is devoid of evidence that Wengerter acted with substantial certainty of the risk of injury ultimately suffered by Johns. Wengerter produced evidence that bang snaps had regularly been used in pranks at the firehouse without inflicting physical injuries.
• There is no suggestion in the record that Wengerter was aware that the particular circumstances of the prank that injured Johns was substantially certain to result in a physical injury.
• Nor is there a suggestion in the record that Wengerter intentionally set out to harm Johns or anyone else with his ill-advised plan to play pranks while he was at work.
• In addition, the horseplay or skylarking provision of the WCA evidences a legislative intent to make injuries from such activities compensable under the statute.

Here is a copy of the decision: Johns v. Wengerter_ 2019 N.J. Super. Unpub. LEXIS 730