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Man can’t sue co-worker who burned him in prank

Posted On: Apr. 24, 2019 1:10 PM CST

burned prank Rhode Island

An employee cannot bring a claim against his co-worker for tortious acts after collecting workers compensation benefits, the Supreme Court of Rhode Island held Tuesday.

In Mello v. Killeavy, a five-justice panel of the state’s high court affirmed a superior court decision holding that the exclusivity provision in the state’s Workers Compensation Act does not allow a man injured by the acts of his co-worker to file a suit against his fellow employee.

Joshua Mello and Sean Killeavy worked for a family-owned maintenance and groundskeeping company and routinely played practical jokes on each other. On Aug. 17, 2015, while Mr. Mello was in a bathroom stall, Mr. Killeavy poured gasoline on the floor of the bathroom as a practical joke and ignited it, expecting to only create a loud “popping” sound, but the gas had flowed under the stall where Mr. Mello was, and when it burst into flames it seriously injured Mr. Mello who was hospitalized with significant burns and unable to work for more than a year. Mr. Mello received workers compensation benefits and Mr. Killeavy was fired.

In 2016, Mr. Mello filed a complaint in Providence County Superior Court against Mr. Killeavy alleging negligence, and Mr. Killeavy moved for summary judgment on the grounds that his former co-worker’s action was barred by the exclusivity provision of the Act since he had accepted workers comp benefits. The superior court granted summary judgment to Mr. Killeavy, and Mr. Mello appealed.

While Mr. Mello conceded that he was injured on the jobsite by a co-worker and accepted workers comp benefits, he claimed that the Act enabled him to maintain a lawsuit against Mr. Killeavy because of language in the Act that states “the employee may take proceedings, both against that person to recover damages and against any person liable to pay compensation under those chapters for that compensation, and the employee shall be entitled to receive both damages and compensation.”

He contended that the statute implies that the Legislature did not intend to extend immunity to fellow employees when the injury “was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect of the injury.”

The Supreme Court of Rhode Island, however, held that it found no basis in the law to create a judicial exception to the exclusivity provision for injuries caused by acts of co-workers. While Mr. Mello suggests that this rule “may seem harsh in light of his injuries,” the court said that it has not made any exception in the past to the exclusivity provision for acts of co-workers that could be considered to be outside the scope of employment, and affirmed the superior court’s judgment.

Attorney Mark Reynolds, partner at Providence law firm Reynolds, DeMarco and Boland Ltd., said he is pleased with the decision and that the Rhode Island Supreme Court maintained the workers compensation exclusivity provision.

Mr. Mello’s attorney, Ron Resmini, said that the employer was on his uncompensated lunch break at the time of the incident, an argument that was not considered by the court, and that he plans to amend the complaint.

“Obviously the court decided not to go with other jurisdictions that made exceptions for egregious conduct,” he said.