Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision Vasquez was performing his duties within the scope and course of his employment at the time of the injury and was not engaged in horseplay. The workers’ compensation remedy is exclusive, and Vasquez is barred from pursuing a negligence claim against his employer. FACTS:While working as a lifeguard at Waterworld, Kraig Vasquez joined several other lifeguards in performing a safety check of the Big Kahuna water ride. There were seven or eight other riders on the tube, and the tube lacked adequate handles. On the way down the ride, one of the other riders fell on Vasquez’ head, breaking his neck and rendering him unconscious. For an unknown reason, the lead lifeguard did not help Vasquez; instead the other guards moved him without a stability board. Vasquez’ request for workers’ compensation benefits was denied on the insurance company’s finding that Vasquez was engaged in horseplay at the time of the accident. Vasquez did not challenge that assessment and instead sued Waterworld’s parent company, Six Flags Houston, and the lead guard. The trial court granted Six Flags’ motion for summary judgment on Vasquez’ common-law claims of negligence and intentional acts, which was based on the argument that the Texas Workers’ Compensation Act provides the exclusive remedy for employees who suffer on-the-job injuries. Vasquez appeals. HOLDING:Affirmed. The court first finds that Six Flags committed no intentional acts that caused Vasquez’ injuries: it did not require him to perform the safety check, especially not on a tube with inadequate handles. The court also finds that Vasquez’ injury was in no way a product of any alleged negligence by Six Flags. First, the court notes that in recent cases, Walls Regional Hospital v. Bomar, (9 S.W.3d 805 (Tex. 1999), and GTE Southwest Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999), the general rule that workers’ compensation would be the exclusive remedy for injured employees as long as the employer’s conduct was not intentional, has been somewhat expanded to suggest that an employee could possibly sue an employer for negligence for an injury sustained in the course and scope of employment but not otherwise compensable. In Bomar, the Supreme Court said that some injuries would not be compensable under the TWCA if they arose out of personal animosity. In this case, the court rules that the same rationale would apply, and the injury would not be compensable by the TWCA, if Vasquez was engaged in horseplay. The court determines that Vasquez was not engaged in horseplay; he was asked by a supervisor if he wanted to conduct a safety check, which was a normal part of the lifeguards’ duties. Even if the handles were inadequate, the court says, this would be evidence of Vasquez’ negligence, but not that he had deviated from his duties into the realm of horseplay. “We hold that the summary judgment evidence establishes as a matter of law that Vasquez was acting within the course and scope of his employment when the injury occurred. There is no evidence to support the argument he was involved in horseplay. Consequently, the accident was covered by the employer’s workers’ compensation policy, and it is the exclusive remedy for this injury.” OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.