A locker room attendant at a Queensbury country club, who had his left testicle surgically removed following a bizarre incident in which the attendant was struck in the groin by a golf club shaft wielded by the country club’s general manager, may proceed with his tort action filed against the manager, held a New York appellate court [Montgomery v. Hackenburg, 2017 N.Y. App. Div. LEXIS 1719 (Mar. 9, 2017)]. The fact that the attendant accepted workers’ compensation benefits for his injury did not preclude recovery since he had raised an issue of fact as to whether the manager’s actions were intentional.
At the time of his injury, the attendant was in his employer’s pro shop watching one of the club’s professionals assemble golf clubs. According to the attendant’s account, the general manager entered the shop, picked up a golf club shaft and, without warning, raised the shaft striking the attendant’s left testicle. The attended added that he stepped back in pain, while the manager laughed and walked out of the room. The manager later described the contact as accidental and minimal, and stated that the locker room attendant gave no indication that he had been injured. He had, of course, been injured. As a consequence of the incident, the attendant’s left testicle was surgically removed.
Appellate Court’s Decision
The court stressed that there was no dispute that the attendant and general manager were co-employees, that the attendant had been injured in the course of his employment and that he had collected workers’ compensation benefits for his injuries. The court acknowledged that the attendant could not recover if he had been injured by the negligence or wrong of another “in the same employ.” The court emphasized, however, that having the same employer is not synonymous with being “in the same employ.” To be shielded from liability, the manager must himself have been acting within the scope of his employment and not have been engaged in a willful or intentional tort.
The court added that there was no indication that the locker room attendant had been involved in horseplay. The trial court’s denial of the manager’s motion for summary judgment was appropriate since the differing versions of the event presented by the parties, as well as the two club employees who supported plaintiff’s version, raise genuine questions of fact as to whether defendant intended to strike plaintiff and did so in an excessive manner given the sensitive area of impact. Questions of fact existed as to whether the manager had acted in a “grossly negligent and/or reckless” manner when he swung the golf club shaft and struck attendant.