Barton v NWS Michigan, Inc., 2007 ACO #75
The Plaintiff, Mathew Barton, worked third shift for a liquor wholesaler in the bottle room in the warehouse. Employees were allowed to take their breaks outdoors, in the parking area outside of the garage. The Plaintiff testified that he and other employees were allowed to sit in their own lawn chairs during their outdoor breaks.

On October 4, 2005, during his break, the Plaintiff decided to play a practical joke on his supervisor. He placed his lawn chair in the middle of the driveway of the garage. His supervisor had just pulled a truck into the garage and the Plaintiff anticipated the supervisor’s next move would be to pull a different truck out of the garage. The Plaintiff wanted to block his supervisor’s path. Instead of pulling another vehicle out of the garage the supervisor backed up the first truck and ran over the Plaintiff. Mr. Barton suffered serious injuries that kept him off work for more than six months.

The magistrate held that the Plaintiff’s behavior was a sufficient deviation from his employment and that he was injured by reason of his intentional and willful misconduct, barring his right to recovery.

In support of his decision, the magistrate relied on the four factors established in Petrie v General Motors Corp., 187 Mich App 198 (1991) to determine whether the horseplay in question constituted a deviation from the course of employment. The factors are as follows: 1) the extent and seriousness of the deviation, 2) the completeness of the deviation, 3) the extent to which the practice of horseplay had become an accepted part of the employment, and 4) the extent to which the nature of the employment may be expected to include some such horseplay.

The WCAC affirmed the magistrate’s decision and his conclusion that the Plaintiff’s actions at the time of the injury were a serious deviation from his employment. The Plaintiff was not at his workstation at the time of the incident. The incident involved a complete deviation from the Plaintiff’s employment duties. There was no evidence that the horseplay in question was an accepted part of the Plaintiff’s employment duties. Lastly, there was no evidence that the nature of the Plaintiff’s employment, as a general warehouse worker, was expected to include the horseplay that the Plaintiff engaged in at the time of the incident.

In conclusion, the Commission indicated that the deviation was serious in that the Plaintiff intentionally placed himself in a dangerous position.