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Gilbert v. Tyson Foods6/23/2000
e agree with Larson that the term `aggressor defense' is unsatisfactory, in that horseplay does not necessarily take the form of sportive assault in that often it is purely a solo performance, and sometimes even if a co-employee is involved, the conduct is `so kittenish and trivial as to deserve a much less somber designation than "aggression," which is a term borrowed from the lexicon of malicious assault.'"
McKnight, 279 Ala. at 435-36, 186 So. 2d at 149 (citing 1 Larson, Workmen's Compensation Law, ยง 23.30).
It is undisputed that Gilbert was engaged in a duty related to her employment at the time she suffered her injury . Thus, the dispositive issue becomes whether Gilbert instigated the horseplay that led to her injury. Our review of the record reflects that Valasquez, not Gilbert, was the sole instigator of any horseplay that may have taken place between them on the date of the incident. We recognize that the record contains evidence that would support a finding that Gilbert and Valasquez both had probably engaged in horseplay on occasions before November 11, 1996. However, we find in the record no substantial evidence that would support a finding that Gilbert was voluntarily engaged in horseplay with Valasquez at the time of her injury. Because Valasquez was the sole instigator and his conduct proximately caused Gilbert's injury, we conclude, based upon McKnight and Stockham Pipe Fittings, that the trial court erred in entering a judgment in favor of Tyson. Therefore, the judgment of the trial court is reversed and the case is remanded for a determination of the amount of workers' compensation benefits due Gilbert, and for the entry of a judgment consistent with this opinion.
OPINION OF APRIL 21, 2000, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; RULE 39(k) MOTION DENIED; REVERSED AND REMANDED.
Robertson, P.J., and Yates, Monroe, and Crawley, JJ., concur.
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