Negligence – Comp Bar – Arising Out Of – Pressroom 'Goosing' Incident

A newspaper pressman whose supervisor “goosed” him and brought back memories of a childhood sexual assault can recover $40,000 compensatory and $100,000 punitive damages from his newspaper employer; the pressman’s tort suit is not barred by the Workers’ Compensation Act.

The dispositive question is: Did the injury arise out of the employment? In an effort to establish that goosing was an actual risk of plaintiff’s employment, the newspaper submitted evidence that the practice of goosing is prevalent in its pressroom, that the practice has existed for more than 40 years, and that it exists in the pressrooms of newspapers in other parts of the country.

If the assault is personal to the employee and not directed against him as an employee or because of his employment, the injury does not arise out of the employment.

We think City of Richmond v. Braxton, 230 Va. 161 (1985), controls the outcome of the present case. Here, there was evidence that the supervisor goosed fellow workers because he considered them his friends. Indeed, friendship seems to have been the motivation for the pressroom goosing.

The evidence shows clearly that the goosing in the pressroom was of a personal nature and not directed against the recipients as employees or in furtherance of the employer’s business. Hence, plaintiff’s injury, suffered as a result of the goosing, did not arise out of his employment. For this reason, we will uphold the trial court’s denial of the paper’s motion to set aside the jury verdict, and affirm the judgment appealed from.

Richmond Newspapers Inc. v. Hazelwood (Carrico) No. 940913, April 21, 1995; Richmond Cir. Ct. (Markow) Alexander Wellford, Geunet Bashah-Tapscott for appellant; Carolyn P. Carpenter, Eileen N. Wagner for appellee. VLW 095-6-042, 9 pp.