Revisiting the “Thin Line of Intent” in Horseplay vs. Assault Cases
On September 21, 2023, I published an article on a recent ruling from the Commission that delved into the horseplay/assault dichotomy. The case was Ocasio v. Camping World RV Sales, LLC, JCN VA00001870099 (Sept. 11, 2023) and the Commission’s ruling further entrenched already established black-letter law: The dispositive factor in distinguishing between horseplay and assault is the perpetrator’s intent. If the intent was to simply play a prank, with no intention of causing bodily harm, it’s horseplay (and vice versa for assault).
The distinction between horseplay and assault is significant because categorizing a case as a horseplay case or an assault case impacts a claimant’s burden of proof. For assault cases between two co-workers, a claimant must typically prove by a preponderance of the evidence that the assault was directed at the claimant as an employee or because of his or her employment. Said differently, if the assault was borne from something work-related, as opposed to from a purely personal nature, the injuries sustained will likely be compensable as long as the claimant was not an “initial aggressor” or “mutual combatant.” The claimant’s burden, then, is two-fold: (1) the claimant must prove that he or she was an innocent victim; and (2) that the assault was a result of a work-related issue. For horseplay cases, a claimant need only prove that he or she was an innocent victim of a co-worker’s prank. The theory behind horseplay cases, and justification for the lesser burden, is that the work environment is one in which employees will sometimes engage in pranks.
In Ocasio, the claimant was assisting a customer when a fellow co-worker struck the claimant on the arm with the golf cart that he was driving. The co-worker intended to prank the claimant, to scare the claimant. The co-worker was even laughing as he drove the golf cart toward the claimant. The co-worker testified that he was simply playing a practical joke on the claimant and did not intend to injure the claimant. The co-worker did not intend to strike the claimant at all with the golf cart, but rather just to “tap” the claimant with a piece of cardboard sticking out of the golf cart. The co-worker apologized to the claimant and the two shook hands following the incident. The co-worker testified that he held no hard feelings against the claimant, neither for personal nor work related reasons. The claimant did seek a criminal warrant against his co-worker, and the co-worker subsequently pled nolo contendere and was convicted of misdemeanor assault and battery.
As the evidentiary hearing level, the Deputy Commissioner held that the co-worker’s actions rose to the level of assault, thereby elevating the claimant’s burden of proof. As there was no evidence introduced that the assault was work-related, the Deputy Commissioner denied the claimant’s Claim for Benefits.
The Full Commission, on appeal, recognized that the co-worker’s conduct in this case was both horseplay and assault. The co-worker’s actions clearly created, in the claimant’s mind, a reasonable apprehension of being struck by the golf cart. Indeed, the claimant was struck by the golf cart. Despite the elements of common law assault being present, the Commission viewed this as a horseplay case. “[T]he defining characteristic of horseplay is one of intent and that the conduct, however dangerous, was done in jest.” Ocasio at *8. Explaining its rationale further, the Commission went on to say:
Regardless of whether the claimant accurately divined Tazelaar’s intent, this was never an attempt to cause injury. Tazelaar’s motivation was not malice. He perpetrated a prank. We know this from Tazelaar’s testimony that it was intended as a joke; we know that both Tazelaar and his passenger were laughing as they drove at the claimant; and we know that Tazelaar either braked or steered by the claimant, thus avoiding the serious consequence of a direct collision.
Ocasio at *9. Finding that this was a horseplay case, the Full Commission reversed the Deputy Commissioner’s opinion.
The Full Commission’s opinion was a split decision. The dissent found that this was an assault case. “Tazelaar’s conduct, whether intended as a prank or not, placed the claimant in fear of serious bodily harm.” Ocasio at *10.
This case ended up before the Virginia Court of Appeals, and an opinion was recently issued on May 27, 2025 (Camping World RV Sales, LLC v. Ocasio, Record No. 0439-24-4). The Court reversed the Full Commission and found that this was an assault case. Accordingly, intent is no longer the dispositive factor in these cases. “[I]t is not the case that whenever someone intends that their conduct, however dangerous, was done in jest, the horseplay doctrine prevails. The nature of the actions causing injury warrant careful consideration.” Camping World at 11 (internal citations omitted) (italics in original). In reversing the Full Commission and finding that this was an assault case, the Court focused primarily on two facts: (1) the co-worker, by his own admission, did intend to at least “tap” the claimant with the piece of cardboard sticking out of the golf cart; and (2) the co-worker pled nolo contendere and was convicted of misdemeanor assault and battery. In the Court’s view, regardless of the co-worker’s intent to play a prank on the claimant, the nature of his actions rose to the level of assault.
The Court’s decision transforms horseplay/assault into “totality of the circumstances” cases. There is no longer a single dispositive factor (intent), as the Full Commission had previously held. We will continue to monitor this case for an appeal to the Virginia Supreme Court, as well as subsequent rulings from the Commission on this topic to assess how they apply the Court’s decision to their own. The waters have been muddied, though, and it is increasingly important to pay attention to detail in these cases. Due to the now-increased complexity of these cases, and their extremely fact-specific nature, we recommend that adjusters contact defense counsel when one of these cases comes across their desk. As always, our highly skilled team of professionals are available and happy to answer and questions you may have.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
Ford Richardson is a full-service law firm with headquarters located in Richmond’s financial district and satellite offices in Roanoke, Fairfax and Virginia Beach, Washington, D.C. and North Carolina.
Our commitment to our clients is simple: offer top-tier clear legal solutions that allow our clients to excel in their business.
We are privileged to give back to our community and believe it is our responsibility to do so. Our attorneys and support staff serve as leaders and volunteers to a wide array of civic and charitable organizations.
Posted In: E-Blast