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WEBBER v. WEBBER

Cite as 28 Neb. App. 287

Gregory J. Webber, appellant, v. Gregory J. 

Webber, employer, and Vanliner Insurance 

Company, its workers’ compensation 

insurer, appellees.

___ N.W.2d ___

Filed May 5, 2020. No. A-18-993.

1. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

2. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, 

reverse, or set aside a Workers’ Compensation Court decision only when 

(1) the compensation court acted without or in excess of its powers; (2) 

the judgment, order, or award was procured by fraud; (3) there is not 

sufficient competent evidence in the record to warrant the making of the 

order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

3. ____: ____. On appellate review, the factual findings made by the trial 

judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

4. Workers’ Compensation: Evidence: Appeal and Error. When testing 

the sufficiency of the evidence to support findings of fact made by the 

Workers’ Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible 

from the evidence.

5. Workers’ Compensation: Appeal and Error. In workers’ compensation cases, an appellate court is obligated to make its own determinations regarding questions of law.

6. Workers’ Compensation. Whether an injury arose out of and in the 

course of employment must be determined from the facts of each 

case.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/12/2020 09:07 AM CDT
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7. Workers’ Compensation: Proof. The two phrases “arising out of” and 

“in the course of” in Neb. Rev. Stat. § 48-101 (Reissue 2010) are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist.

8. ____: ____. The “in the course of” requirement tests the work connection as to the time, place, and activity; that is, it demands that the 

injury be shown to have arisen within the time and space boundaries of 

employment and in the course of an activity whose purpose is related 

to employment.

9. Workers’ Compensation: Words and Phrases. The phrase “arising 

out of,” as used in Neb. Rev. Stat. § 48-101 (Reissue 2010), describes 

the accident and its origin, cause, and character, i.e., whether it resulted 

from the risks arising within the scope of the employee’s job.

10. Workers’ Compensation. All risks causing injury to an employee can 

be placed within three categories: (1) employment related—risks distinctly associated with the employment; (2) personal—risks personal 

to the claimant, e.g., idiopathic causes; and (3) neutral—a risk that 

is neither distinctly associated with the employment nor personal to 

the claimant.

11. ____. Generally, harm that can be attributed solely to personal or idiopathic causes is universally noncompensable.

12. ____. The test to determine whether an act or conduct of an employee 

which is not a direct performance of the employee’s work “arises out of” 

his or her employment is whether the act is reasonably incident thereto, 

or is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard.

13. ____. The “arising out of” employment requirement is primarily concerned with causation of an injury.

14. ____. All acts reasonably necessary or incident to the performance of 

the work, including such matters of personal convenience and comfort, 

not in conflict with specific instructions, as an employee may normally 

be expected to indulge in, under the conditions of his or her work, are 

regarded as being within the scope or sphere of the employment.

15. ____. Injuries resulting from horseplay may be within the scope of 

employment; such injuries are within the scope of employment and 

compensable if (1) the deviation is insubstantial and (2) the deviation 

does not measurably detract from the work.

16. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the Workers’ Compensation Court: James R. 

Coe, Judge. Affirmed.
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Travis Allan Spier, of Atwood, Holsten, Brown, Deaver & 

Spier Law Firm, P.C., L.L.O., for appellant.

Jennifer S. Caswell and Jenna M. Christensen, of Baylor 

Evnen, L.L.P., for appellees.

Moore, Chief Judge, and Pirtle and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

While inside a warehouse to perform duties related to relocation services, Gregory J. Webber sustained injuries when he 

lit a firework that exploded in his hands. He sued his employer 

(his sole proprietorship) and its workers’ compensation insurer, 

Vanliner Insurance Company (collectively Employer), for 

workers’ compensation benefits. Webber appeals from the decision of the Nebraska Workers’ Compensation Court which 

dismissed Webber’s case, finding that his injuries did not arise 

out of his employment and that his actions constituted willful 

negligence. We affirm.

BACKGROUND

In July 2016, Webber filed a petition in the Workers’ 

Compensation Court against his Employer. He stated that he 

was a “self-employed sole proprietor” working on a full-time 

basis as an “over-the-road truck driver.” He alleged that on or 

about June 27, in Omaha, Nebraska, while in the course and 

scope of his employment, he sustained injuries to his “bilateral 

hands and body as a whole, and hearing loss” after “a firework 

exploded in [his] hands.” Webber sought indemnification and 

payment of medical and mileage expenses.

The matter came on for hearing before the Workers’ 

Compensation Court on July 6, 2018. The parties stipulated 

that at all times relevant, Webber was a “self-employed 

sole proprietor working on a full-time basis as a relocation 

specialist/over-the-road truck driver.” The parties also stipulated that Webber’s “employer was organized as an unincorporated sole proprietorship based out of Lincoln, Lancaster 
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County, Nebraska.” Webber testified that his job generally 

entailed doing “everything there is in the capacity of moving 

somebody from one location to another location, no matter 

what it may be,” including taking “everything apart,” packing 

all of a customer’s “stuff up,” loading furniture (into a semitruck), and then putting “everything back together.” Because 

some loads must be stored, Webber occasionally unloaded a 

customer’s items at a Select Van & Storage Co. (Select Van & 

Storage) warehouse.

Based on an “Independent Contractor Operating Agreement,” 

Webber was a contractor of Select Van & Storage, which 

company was defined as an “authorized motor carrier that 

transports and stores household goods and general commodities” under either its own operating authority or the authority 

of United Van Lines, LLC, and/or Mayflower Transit, LLC. 

According to Webber, he drove exclusively for Mayflower 

Transit, and he received work through Select Van & Storage. 

Webber indicated that Select Van & Storage had offices in 

Lincoln and other states; we refer to its warehouse located at 

“80th and J” in Omaha, where the incident at issue took place, 

as the “warehouse” in this opinion.

On June 27, 2016, Webber drove his semi-truck from his 

residence in Lincoln to the warehouse to check on a trailerload 

that he was to deliver. He had left his trailer backed into the 

warehouse. Webber remembered the “first thing” he wanted 

to do was make sure he “got everything off the [warehouse] 

floor,” referring to customer items for the shipment, and then 

he was “going to hook up to [his] trailer and continue on with 

[his] route.” However, when he arrived at the warehouse he 

saw David Tilley, who worked as a warehouse manager there, 

near the front of the warehouse. Webber agreed Tilley was a 

fellow fireworks enthusiast based on conversations they had 

in the past about fireworks. In his semi-truck, Webber had an 

artillery shell that was “about the size of a golf ball.” Webber 

parked, placed that firework in his pocket, exited his semitruck, and entered the warehouse.
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Once inside the warehouse, Tilley walked with Webber 

toward Webber’s trailer; Tilley testified that he (Tilley) was 

headed to go prepare semi-trucks for his own “home deliveries.” During the hearing, Webber drew a continuous, straight 

line on an exhibit of an overhead map of the warehouse to 

indicate the complete path he would have taken to reach his 

trailer. Webber said that he showed Tilley the firework as they 

were headed “that way.” At some point while walking in that 

direction, Webber said he asked Tilley to light off the firework but Tilley declined the offer, telling Webber that he did 

not want to light it because the “wick was too small”; something Tilley confirmed. Tilley testified that he did not want 

the firework “going off in [his] hands,” out of concern for 

the wick’s short length. Tilley estimated the wick was about a 

“quarter of an inch” long, while Webber said it was “about an 

inch” long. Tilley recalled that he told Webber “if you want 

to light it, go right ahead.” Webber indicated that he stopped 

in essentially the midpoint of his intended path to reach his 

trailer and moved about 6 feet away from that path to near an 

open exit door but remained inside the warehouse. Webber 

then lit the firework. Webber estimated that about 10 seconds of time passed from the moment he moved to the door 

to when the firework went off. Tilley was standing behind 

Webber at that time and recalled that “as soon as it lit, it went 

off.” Webber sustained “[b]last / powder burn injur[ies]” to 

his stomach and lower legs and to both of his hands, resulting 

in partial amputations of several fingers.

A fundraiser webpage “by Greg Webber,” said, in part, 

“while inspecting fireworks and timing of certain fireworks, 

one exploded way before I ever thought it would.” Webber testified that this was not an accurate statement and that his sister 

wrote it, not him. The webpage also stated, “I feel like a dumb 

ass to even ask for help, when what I did was all my own fault 

and just a bad decision, but unfortunately I still need help.” 

When asked why he had a firework in his pocket while in the 

warehouse on June 27, 2016, Webber answered that he “like[d] 
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lighting fireworks just as much as the next guy” and that he 

had learned that Tilley and Tilley’s son (who also worked for 

the warehouse at some point) liked fireworks. Webber said he 

and Tilley “both liked to light [fireworks] off and blow stuff up 

and have fun with them on [Independence Day].” Webber was 

aware that Tilley had previously lit off a loud firework at the 

warehouse. Webber brought out the firework on June 27 “just 

to say, you guys thought you had some loud ones; well, I have 

an even louder one.” He stated that on June 27, he only had 

“the one” (firework) in his semi-truck because he was “hoping 

to run into them eventually” (Tilley or Tilley’s son). He considered it important to develop rapport with employees of the 

warehouse and said that lighting the firework played a role in 

that, stating, “you want people to like you and get along with 

you, and you find a common ground with another individual 

and boys being boys [sic].”

Webber said a lot of job assignments he received through 

Select Van & Storage were based on ratings on metrics such 

as customer feedback: “[T]he higher rating you have, the better job you get.” He talked about how he had lit off fireworks 

for customers he had relocated in the past, usually for a “pretty 

good-sized job and around the 4th of July.” Feedback from 

those shows affected his “bottom line.” He thought that, as 

his own employer, it was appropriate to be using fireworks for 

what was referred to as client promotion. He also had invited 

employees who he had employed throughout the year to his 

home (he hired laborers employed by the warehouse sometimes to move items off or onto his semi-truck) and put on a 

“little firework show” for them. Webber had “lit off hundreds 

and thousands of fireworks” in his life and did not think he 

was going to get hurt on June 27, 2016. He had “lit off many 

fireworks for customers,” so it was “just another day.”

Upon a joint stipulation of the parties, at a hearing in August 

2018, the court accepted into evidence written closing arguments of each of the parties. In September, the compensation 

court entered an “Order of Dismissal.” The court concluded 
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that Webber’s actions did not arise out of Webber’s employment and that they constituted willful negligence. It dismissed 

Webber’s petition. We will discuss the court’s specific findings 

from its order as relevant below.

Webber appeals.

ASSIGNMENTS OF ERROR

Webber claims, consolidated and restated, that the Workers’ 

Compensation Court erred by (1) concluding his injuries did 

not arise out of and in the course of his employment; (2) failing 

to follow “binding precedent” from Varela v. Fisher Roofing 

Co., 253 Neb. 667, 572 N.W.2d 780 (1998), and failing to 

apply its horseplay analysis to this case to find his injuries 

arose out of and in the course of his employment; (3) reaching 

the willful negligence issue because it was inappropriate and 

unnecessary dicta, and even if appropriate to address it, finding 

there was sufficient, competent evidence in the record to support its findings concerning willful negligence; and (4) failing 

to construe provisions of the Nebraska Workers’ Compensation 

Act liberally to carry out the act’s purpose.

[1] We note that there is no separate heading and argument 

in Webber’s brief specifically related to the last assigned error, 

and we therefore do not address it. An alleged error must be 

both specifically assigned and specifically argued in the brief 

of the party asserting the error to be considered by an appellate court. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 

131 (2019).

STANDARD OF REVIEW

[2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), 

an appellate court may modify, reverse, or set aside a Workers’ 

Compensation Court decision only when (1) the compensation 

court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not 

sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact 

by the compensation court do not support the order or award. 
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St. John v. Gering Public Schools, 302 Neb. 269, 923 N.W.2d 

68 (2019).

[3,4] On appellate review, the factual findings made by the 

trial judge of the Workers’ Compensation Court have the effect 

of a jury verdict and will not be disturbed unless clearly wrong. 

Krause v. Five Star Quality Care, 301 Neb. 612, 919 N.W.2d 

514 (2018). When testing the sufficiency of the evidence to 

support findings of fact made by the Workers’ Compensation 

Court trial judge, the evidence must be considered in the light 

most favorable to the successful party and the successful party 

will have the benefit of every inference reasonably deducible 

from the evidence. Id.

[5] In workers’ compensation cases, an appellate court is 

obligated to make its own determinations regarding questions 

of law. Id.

ANALYSIS

Applicable Legal Principles

[6] The Nebraska Workers’ Compensation Act provides that 

when an employee suffers personal injury caused by accident 

or occupational disease, arising out of and in the course of his 

or her employment, such employee shall receive compensation 

from his or her employer if the employee was not willfully 

negligent at the time of receiving such injury. Neb. Rev. Stat. 

§ 48-101 (Reissue 2010). Whether an injury arose out of and 

in the course of employment must be determined from the facts 

of each case. Murphy v. City of Grand Island, 274 Neb. 670, 

742 N.W.2d 506 (2007).

[7,8] The two phrases “arising out of” and “in the course 

of” in § 48-101 are conjunctive; in order to recover, a claimant 

must establish by a preponderance of the evidence that both 

conditions exist. Zoucha v. Touch of Class Lounge, 269 Neb. 

89, 690 N.W.2d 610 (2005). The “in the course of” requirement tests the work connection as to the time, place, and 

activity; that is, it demands that the injury be shown to have 

arisen within the time and space boundaries of employment 
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and in the course of an activity whose purpose is related to 

employment. Cox v. Fagen, Inc., 249 Neb. 677, 545 N.W.2d 

80 (1996).

[9-11] The phrase “arising out of,” as used in § 48-101, 

describes the accident and its origin, cause, and character, 

i.e., whether it resulted from the risks arising within the 

scope of the employee’s job. Zoucha, supra. All risks causing 

injury to an employee can be placed within three categories: 

(1) employment related—risks distinctly associated with the 

employment; (2) personal—risks personal to the claimant, 

e.g., idiopathic causes; and (3) neutral—a risk that is neither 

distinctly associated with the employment nor personal to 

the claimant. Maroulakos v. Walmart Associates, 300 Neb. 

589, 915 N.W.2d 432 (2018). Harm that arises from risks 

distinctly associated with the employment is universally compensable. Id. Generally, harm that can be attributed solely to 

personal or idiopathic causes is universally noncompensable. 

Id. Harm that arises from neutral risks is generally compensable. Id.

Generally, a risk may be classified as neutral for either of 

two reasons: (1) the nature of the risk may be known, but may 

be associated neither with the employment nor the employee 

personally, or (2) the nature of the cause of harm may be simply unknown. Id. Examples of neutral risks of the first type are 

stray bullets, lightning, or hurricanes, while the most common 

example of a neutral risk of the second type is a purely unexplained fall. Id.

[12,13] The test to determine whether an act or conduct of 

an employee which is not a direct performance of the employee’s work “arises out of” his or her employment is whether the 

act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment which creates 

a formidable independent hazard. Misek v. CNG Financial, 

265 Neb. 837, 660 N.W.2d 495 (2003). The “arising out of” 

employment requirement is primarily concerned with causation 

of an injury. Id.
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[14] All acts reasonably necessary or incident to the performance of the work, including such matters of personal 

convenience and comfort, not in conflict with specific instructions, as an employee may normally be expected to indulge 

in, under the conditions of his or her work, are regarded 

as being within the scope or sphere of the employment. Id.

(employee’s journey to store to obtain soft drinks for herself, 

supervisor, and coworker was matter of personal convenience 

and comfort which employees may normally be expected to 

indulge in; injury arose out of employment). See, also, Cords 

v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996) 

(city employee’s meeting with mayor to discuss his retention 

as employee after 26 years of exemplary service in responsible managerial position, while not direct performance of 

employee’s work, was subject of beneficial interest to city and 

was not forbidden by employee’s direct superior; injury arose 

out of employment); Cannia v. Douglas Cty., 240 Neb. 382, 

481 N.W.2d 917 (1992) (correction officer’s jogging while 

attending jail management course at training center was reasonably incidental to his employment where attendance and 

successful completion of course was mandatory and evidence 

showed trainees were encouraged to jog or walk while attending the course; injury arose out of employment); Parks v. 

Marsden Bldg. Maintenance, 19 Neb. App. 762, 811 N.W.2d 

306 (2012) (employee thought traveling to his home to retrieve 

building access card was necessity arising from his employment; that deviation from employment regarding handbook 

policy of clocking out and getting permission when leaving 

building was not substantial and was reasonably incident to 

his employment).

Lighting Firework Did Not Arise 

Out of Employment

The Workers’ Compensation Court found that the preponderance of the evidence showed that Webber’s lighting of 

the firework inside the warehouse did not arise out of his 
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employment as it “had nothing to do” with his work as a relocation specialist to help customers move. The compensation 

court noted the following: The purpose of Webber’s visit to the 

warehouse was to check on the trailer he was to drive to relocate a customer; Webber showed Tilley “the firework to show 

him that he had a bigger firework than Tilley was used to,” 

and Webber thought he “had a louder firework” and wanted to 

show it to Tilley; Webber thought it was important to develop 

rapport with the Select Van & Storage people, which “is 

why [Webber] brought the firework as ‘boys will be boys’”; 

Webber intended to throw the firework through an open door 

after it was lit; and Webber did not intend for the firework to 

go off in the warehouse. The compensation court concluded 

that Webber’s actions were “solely personally related and nonbusiness oriented” and that the lighting of the artillery shell in 

the warehouse “had nothing to do” with inspecting a trailer to 

be delivered.

Webber argues that the compensation court erred as a matter 

of fact and law in concluding his injuries did not arise out of 

his employment. Webber asserts that as “his own employer,” 

he “defines the activities which arise out of his employment, 

including incorporating fireworks use as a regular part of his 

job as a relocation specialist.” Brief for appellant at 23. He 

claims the compensation court did not acknowledge he was 

his own employer, as the parties had stipulated, for purposes 

of identifying the customs of his workplace. He argues that his 

use of fireworks was an employment risk because he allegedly 

used fireworks to build rapport with peers and improve client 

satisfaction ratings.

However, even if Webber put on firework shows for customers as some kind of appreciation or marketing event, those 

are not the circumstances present here. Lighting a firework at 

a warehouse where he was scheduled to pick up a trailerload 

for delivery was not within the scope of Webber’s job, and 

thus, the accident leading to his injury did not arise out of his 

employment. See Zoucha v. Touch of Class Lounge, 269 Neb. 
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89, 690 N.W.2d 610 (2005) (phrase “arising out of” as used 

in § 48-101 considers whether the accident resulted from risks 

arising within the scope of the employee’s job). There is no 

question that Webber’s action in lighting the firework at the 

warehouse was not in direct performance of his work. And as 

set forth previously, the test to determine whether an act or 

conduct of an employee which is not a direct performance of 

the employee’s work “arises out of” his or her employment is 

whether the act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment 

which creates a formidable independent hazard. Misek v. CNG 

Financial, 265 Neb. 837, 660 N.W.2d 495 (2003).

The evidence supports the compensation court’s conclusion 

that the lighting of the firework by Webber was solely personal and had nothing to do with his work. Given Webber’s 

own description of his duties involved in his work as a relocation specialist and an over-the-road truckdriver and his 

specific work-related purpose for being at the warehouse on 

June 27, 2016 (i.e., checking that trailer was fully loaded 

and connecting trailer to semi-truck for delivery), the evidence supported the compensation court’s conclusion that 

lighting a firework in a warehouse was entirely a personal 

endeavor and was not reasonably incidental to his work. 

Further, Webber’s act of lighting a firework, under the facts 

of this case, simply cannot be categorized as a matter of 

personal convenience and comfort, a matter of necessity, or 

a beneficial interest to the employer, as indicated in the 

case examples cited previously. Rather, the evidence showed 

Webber lit the firework in an effort to impress Tilley with a 

loud firework.

While Tilley was seemingly indifferent about whether 

Webber lit the firework in the warehouse, there was no dispute 

among the parties at the hearing that neither Tilley nor Select 

Van & Storage was Webber’s employer. Webber was selfemployed, and the compensation court noted the same. Thus, 

Webber’s arguments in his brief based on evidence regarding 
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past behavior of Select Van & Storage employees and policies 

of that company are not relevant.

To support that lighting the firework was incidental to his 

work, Webber claims that he “wanted to develop rapport with 

Select Van & Storage employees, because that [was] where the 

majority of his business was generated.” Brief for appellant 

at 23. But there was no evidence that Webber’s assigned jobs 

through Select Van & Storage depended on successful rapportdevelopment with warehouse employees. By Webber’s own 

account, he received a lot of his jobs based on his “rating,” 

and higher ratings meant “better” jobs and “[m]ore money.” 

Ratings depended on “how well you do your job,” “the feedback you get from the customer,” and “whether you’re showing up in uniform on time,” but “[t]he rapport you develop 

with the customer [was] probably the most important thing.” 

Webber also claims his firework use was an employment risk 

because of its alleged purpose in positively impacting his 

customer ratings, having arranged firework shows for some 

customers in the past. However, such arguments related to 

developing customer relationships are not persuasive, because 

the evidence does not show any customer was present when 

Webber lit the firework in the warehouse. Webber testified 

that, besides Tilley, “[n]obody else was around” when he lit 

the firework on June 27, 2016. There was no beneficial interest to Webber’s sole proprietorship from his action that led to 

his injuries.

We find no error in the compensation court’s conclusion 

that Webber’s actions were personal and had nothing to do 

with his job, and thus, Webber’s injuries did not arise out of 

his employment.

Horseplay

Webber contends that this case is “clearly a horseplay case” 

pursuant to Varela v. Fisher Roofing Co., 253 Neb. 667, 572 

N.W.2d 780 (1998), such that his injuries arose out of and 

in the course of his employment. Brief for appellant at 15. 

He claims that the compensation court’s “failure to apply the 
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horseplay analysis from Varela constitutes legal error justifying reversal.” Id. at 16. However, the Employer contends it 

was unnecessary for the compensation court to apply Varela, 

supra, “because Varela requires a scintilla of evidence that the 

alleged horseplay is somehow related to work and the [compensation] court found absolutely no employment purpose to 

lighting the firework.” Brief for appellee at 10. Further, even 

applying Varela, Webber’s “injury did not arise out of or occur 

in the scope of his employment.” Id. at 11. We agree with the 

Employer that it was unnecessary for the compensation court 

to apply Varela to the facts here, given the court’s conclusion 

that the “lighting of the firework in the warehouse had nothing to do with [Webber’s] job,” and was “solely personally 

related.” As we explain next, the horseplay at issue in Varela

stemmed from interactions between employees related to their 

work, which was not the case here.

In Varela, supra, the Nebraska Supreme Court considered 

whether an arm-wrestling incident on the roof of a school 

between two employees constituted horseplay and whether 

certain incidents of horseplay, resulting in injury to a worker, 

might be within the scope of employment and thus arise out of 

it. It noted that the case involved “some good-natured teasing 

about whether [the employee] was carrying his share of the 

workload,” which “in turn led to the arm-wrestling challenge 

as a test of strength and manhood,” Varela, 253 Neb. at 672, 

572 N.W.2d at 783. The court stated that the “arm-wrestling 

match arose spontaneously out of work-related banter” and that 

the “accidental slip during the course of this momentary horseplay” caused the employee’s injury. Id. The employee’s “foot 

slipped off the skylight, causing him to fall and injure his right 

foot.” Id. at 668, 572 N.W.2d at 781.

[15] In considering this court’s opinion on further review, 

the Nebraska Supreme Court noted this court’s adoption of 

“Professors Larson and Larson’s theory that ‘“horseplay participation . . . should have the benefit of the general rule that 

trifling and insubstantial deviations, which do not measurably 
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detract from the work, should not be treated as departures 

from the scope of employment.” . . .’” Id. at 671, 572 N.W.2d 

at 782-83. The Supreme Court cited the following portion of 

this court’s analysis of the case:

“We believe that Larson and Larson’s proposed test for 

compensability is appropriate and that certain incidents 

of horseplay, resulting in injury, may be within the scope 

of employment and arise out of it. We look to whether 

the deviation was substantial because, obviously, [the 

employee] and [the coworker] were not directly working 

when the injury occurred. We find that the work stoppage 

was of momentary duration, the injury happened at the 

very outset of the horseplay, this was not the sort of incident which carried a significant risk of serious injury, and 

the incident was a trifling matter, at least in its intention 

by the two employees. These factors lead to the conclusion that the arm-wrestling was an insubstantial deviation 

and did not measurably detract from the work (but for 

the injury).”

Varela v. Fisher Roofing Co., 253 Neb. 667, 671, 572 N.W.2d 

780, 783 (1998). The Supreme Court agreed with this court’s 

test for compensability of an injury resulting from horseplay, 

namely, that such injuries are within the scope of employment 

and are compensable if “(1) the deviation is insubstantial and 

(2) the deviation does not measurably detract from the work.” 

Id. The Supreme Court also agreed with this court that the 

arm-wrestling incident at issue “was an insubstantial deviation 

and did not measurably detract from the work.” Id. at 672, 572 

N.W.2d at 783.

In the present case, Webber’s action in lighting a firework in the warehouse did not arise spontaneously out of 

work-related banter, nor was it the type of trifling matter or 

insubstantial deviation characterized as horseplay in Varela, 

supra. Rather, it was a personal pursuit intended to impress 

another fireworks enthusiast, Tilley. Webber intentionally put 

the firework in his pocket before entering the warehouse. As 
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

WEBBER v. WEBBER

Cite as 28 Neb. App. 287

explained by Webber himself, his purpose was “just to say, 

you guys thought you had some loud ones; well, I have an 

even louder one.” This was not an action that spontaneously 

arose out of workplace activities; rather, it was a substantial 

deviation from work which would have measurably detracted 

from work, even had Webber not been injured. We find no 

error by the compensation court in finding it unnecessary to 

address horseplay in its order.

Finding of Willful Negligence

[16] Webber contends that the compensation court “erred as 

a matter of law in reaching the willful negligence issue after it 

had already concluded there was not a work injury arising out 

of employment” and that thus, the “willful negligence determination” should be reversed. Brief for appellant at 29. Webber 

provides no authority to support reversing the compensation 

court’s order, which reached the issue of willful negligence. 

It is not unusual for a trial court to provide an alternative 

basis for reaching a decision. However, we find it unnecessary to address this portion of the compensation court’s order, 

because we have already found no error in the dismissal of 

Webber’s action based upon the compensation court’s finding 

that the accident did not arise out of Webber’s employment. 

See Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 

905 (2017) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate case and controversy 

before it).

CONCLUSION

We affirm the judgment of the Workers’ Compensation 

Court dismissing Webber’s petition.

Affirmed.