Home > Uncategorized > “He Started It!” Initial Physical Aggressor – Part 3 of 3

“He Started It!” Initial Physical Aggressor – Part 3 of 3

December 7th, 2012

So dear readers, there I was.  Sitting at Thanksgiving dinner, looking at poor cousin Milosh staring helplessly at his food as he pondered his fate at the broom factory.  Would his claim for workers’ compensation benefits, based on injuries sustained during his fight with co-worker “Nasty Nate” be barred by the initial physical aggressor defense (“IPAD”)?

In order for Milosh to survive the IPAD, Nate would have to be the initial physical aggressor.  When Nate taunted cousin Milosh and insulted his broom-making skills, it probably didn’t rise to the level of initial physical aggressor as articulated in the Mathews case.  So Nate was probably still in the “horseplay” arena.

What about the handful of broom-bristles Nate threw at Milosh?  Well, broom bristles can be fatal to dust, dirt, crumbs, trash, and messes, but it might be a stretch for cousin Milosh to claim that the handful of broom-bristles thrown at him put him in reasonable fear of bodily harm.  So Nate was still probably in the “horseplay” arena, and cousin Milosh was no closer to the workers’ compensation gravy train of paid time off, free opioids, and court-ordered ramps on his vacation home.

So what about Milosh spitting on Nasty Nate?  After all, in the cases of Thomas and Galindo mentioned in last-time’s post, spitting was a key factor in finding the “spittor” the initial physical aggressor.  Well, cousin Milosh aimed the spit at the floor and hit Nate’s shoe.  Hardly the same sort of aggression as spitting in a person’s face!  What happened next was a pretty clear sign of aggression, the act of Nate charging and kicking and punching and injuring.

As much as your humble blogger hates to say it, cousin Milosh just might have a claim that would survive the initial physical aggressor defense.  Cousin Milosh’s response was just what you’d think it would be when I reluctantly told him the good news.

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