A mother’s wrongful death action against her son’s employer was not barred by the exclusive remedy provisions of the Georgia Workers’ Compensation Act (“Act”) where the undisputed facts clearly showed that her son’s death did not arise out of the employment, held a state appellate court [Sturgess v. OA Logistics Servs., Inc., 2016 Ga. App. LEXIS 67 (Feb. 15, 2016)]. The facts were as bizarre as they were tragic. The deceased was shot and killed by a temporary employee for no apparent reason. The murderer turned out to be a convicted felon who had used an alias and fake ID in applying for work. The appellate court held the risk of a random attack was no more heightened at the deceased’s workplace than at any other place.
The employer contracted with Staffchex to provide temporary workers to work at one of its warehouses. Lema applied for a position with Staffchex using Christopher Young-Evans as an alias. Evidence indicated certain portions of Lema’s application form were incomplete, and his purported photo identification appeared different from his actual appearance.
The employer required Staffchex to perform criminal background checks on each worker before they were employed, but before Lema’s check was returned, he began working at the warehouse. The check on the alias would eventually show no criminal history, despite the fact that Lema had a felony criminal record. The deceased employee, who drove a forklift at the warehouse, went to the office area to determine what he should do about the fact that his forklift had run out of fuel. While he waited outside with his back turned, Lema entered the office and attempted to kiss a female co-worker, who immediately pushed him away.
In response, Lema smirked, stood back, walked outside, produced a hand gun and shot the deceased in the back of the head. Lema then re-entered the office and sexually assaulted the female employee. During the ensuing struggle, Lema inexplicably passed out, and the female employee fled, warning the other employees in the warehouse. According to the female employee, the deceased, who was a family friend, had not been aware of the assault, had not attempted to intervene, and had not interacted with Lema before that occasion.
The deceased’s mother filed a wrongful death action and, following discovery, the trial court granted summary judgment in favor of the employer and Staffchex on exclusivity grounds.
Appellate Court’s Discussion
The appellate court said that it was, of course, beyond dispute that the deceased’s death arose in the course of the employment because it occurred while the deceased was on duty performing his job functions at his employment location. It did not arise out of the employment, however. There was no causal connection between the employment and the fatal shooting. The Georgia Act excludes from coverage any injury that cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the employee would have been equally exposed apart from the employment.
The Court said the record was devoid of any connection between the attack and the deceased’s work or workplace. Contrary to cases where a violent attack was connected with an employee’s required presence in a high-crime area, a dark parking lot at unusual hours, or a high-risk area late at night, the deceased’s work did not require him to be in a location that heightened his risk of injury or criminal attack. Nor was there evidence that the deceased and Lema had any work-related dispute that escalated into violence.
For those reasons, it was error for the trial court to conclude that the deceased’s murder arose out of the employment.