Doggett v. Patrick, A90A1438

• Citation: 398 S.E.2d 770,197 Ga.App. 420
• Decision Date: 29 October 1990
• Docket Number: No. A90A1438,A90A1438
• Parties: DOGGETT v. PATRICK.
• Court: United States Court of Appeals (Georgia)

Page 770

398 S.E.2d 770

197 Ga.App. 420

DOGGETT v. PATRICK.

No. A90A1438.

Court of Appeals of Georgia.

Oct. 29, 1990.

John T. Croley, Jr., Fitzgerald, for appellant.

Watson, Spence, Lowe & Chambless, Mark A. Gonnerman, Dawn G. Benson, Albany, for appellee.

POPE, Judge.

Plaintiff James L. Doggett was an employee of Handy Food Center, Inc., a small chain of grocery stores, when he was severely injured in the course of his employment. The record shows plaintiff entered the meat cutting room of the store at which he was employed and when the door slammed shut the suspended ceiling fell, knocking plaintiff into a meat slicer. The blade slashed the left side of his throat almost from front to back, severing nerves, tissue and arteries. His life was apparently saved because a fellow employee pinched the main artery to stop the loss of blood until an ambulance arrived. Plaintiff received workers' compensation benefits from his employer. He also brought this action against defendant E.M. Patrick under the theory of premises liability. Defendant owns the property on which the grocery store is located, had the building constructed and leased it to the corporation which is plaintiff's employer. However, defendant is also the president of that corporation, though he owns no stock in it, and was granted summary judgment on the ground he is immune from liability pursuant to the exclusive remedy provision of the Workers' Compensation Act. Plaintiff appeals.

The issue presented on appeal is whether defendant, who would be immune from suit for acts performed in his representative capacity as an executive officer of the corporation (see Stoker v. Wood, 161 Ga.App. 110, 289 S.E.2d 265 (1982)), is subject to liability pursuant to the "dual persona doctrine." Pursuant to that doctrine, " '(a)n employer may become a third person, vulnerable to tort suit by an employee, if--and only if--he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.' Larson's Workmen's Compensation Law, § 72.81, Vol. 2A." Porter v. Beloit Corp., 194 Ga.App. 591, 593, 391 S.E.2d 430 (1990). For the dual persona doctrine to apply, the duties imposed upon the second persona must be totally separate from those imposed by the employer-employee relationship. Larson's Workers' Compensation Law, § 72.81(c). The issue thus becomes whether defendant acted as a separate legal entity in constructing and maintaining the building or merely acted in his representative capacity as the alter ego of the corporation-employer.

Plaintiff's complaint alleges his injuries were proximately caused by the negligent and defective construction of the building and negligent maintenance of the premises. The premises were not owned in this case by the corporation-employer but by defendant Patrick in his individual capacity. The record shows defendant had the building constructed and that he contracted with the individual tradesmen and contractors for the work necessary to complete the building instead of hiring a general contractor. The building at issue in this case and four other buildings owned by defendant are leased by him to the corporation-employer for use as grocery stores. Defendant receives monthly lease payments for the five buildings pursuant to written leases in addition to his salary and other compensation as president of the corporation. Thus, at least an issue of fact is presented concerning whether the duties imposed upon defendant as a landowner are separate from those imposed upon him as a representative of plaintiff's employer.

In an earlier case this court held the president of the corporation which was plaintiff's employer was entitled to immunity from suit pursuant to the workers' compensation law. In Vaughn v. Jernigan, 144 Ga.App. 745, 242 S.E.2d 482 (1978), the plaintiff was injured by machinery operated by his employer on property owned by the defendant who was also the president, a director and a stockholder of the employer corporation. The complaint alleged the operation and maintenance of the machinery constituted a defective condition on the premises for which defendant was liable as owner. We held defendant was entitled to immunity from suit because his "knowledge of the allegedly defective condition, as well as his authority to correct it, came to him not through his ownership of the premises but through his active involvement in the management of the...