Sturgess v. OA Logistics Servs., Inc., A15A2139.
Citation | 784 S.E.2d 432,336 Ga.App. 134 |
Decision Date | 10 March 2016 |
Docket Number | No. A15A2139.,A15A2139. |
Parties | STURGESS v. OA LOGISTICS SERVICES, INC., et al. |
Court | United States Court of Appeals (Georgia) |
Kathryn Hughes Pinckney, Brent J. Savage, Savannah, for Sturgess.
Kenneth Gary Menendez, Atlanta, Johnny Andrew Foster, Savannah, for OA Logistics Services, Inc., et al.
, Chief Judge.
Maria Sturgess appeals from the grant of summary judgment to OA Logistics Services, Inc. ("OA"), and StaffChex, Inc., in her wrongful death claim against them based on the death of her son, Nickifor Zephyrine. Sturgess contends that the trial court erred by ruling that (1) her claim was barred by the exclusive remedies provision of the Georgia Workers' Compensation Act ("WCA"), and (2) StaffChex is a temporary staffing firm covered by the WCA.1 Because the undisputed facts show that Zephyrine's death arose out of his employment under the positional risk doctrine and that StaffChex is covered by the WCA, we affirm the grant of summary judgment.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.2
So viewed, the record shows that OA contracted with StaffChex to provide temporary workers to work at a warehouse owned and operated by OA. On February 16, 2012, Christopher Lema applied for a position with StaffChex using Christopher Young–Evans as an alias. Certain portions of Lema's application form were incomplete, and his purported photo identification appeared different from his actual appearance. OA required StaffChex to perform criminal background checks on each applicant before they were employed, but before Lema's check was returned, he began working at an OA warehouse. The check on the alias would eventually show no criminal history, despite the fact that Lema had a felony criminal record.
On February 24, 2012, still before the return of the criminal background check, Lema was employed at the OA warehouse along with Zephyrine, who drove a forklift. Zephyrine's forklift ran out of fuel, so he went to an office area to inquire about refueling. He encountered a female employee who told him that he might find a supervisor if he waited outside the office. As Zephyrine waited outside the office with his back turned, Lema entered the office and forcibly attempted to kiss the female co-worker, who immediately pushed him off. In response, Lema smirked, "stood back[,] ... and walked out." Lema then produced a hand gun and shot Zephyrine in the back of the head, 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, Zephyrine, 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.
Based on Zephyrine's death, Sturgess sued OA, StaffChex, Lema, a John Doe who allegedly supplied Lema the gun, and another corporate entity. Among the allegations were claims that OA and StaffChex negligently conducted the hiring process, resulting in the hiring of a convicted felon who attacked his co-workers, killing Zephyrine.
Following discovery, StaffChex and OA moved for summary judgment, and the trial court granted it in favor of both parties on the ground that the exclusive remedy provisions of the WCA bar Sturgess's tort claims against them. Sturgess now appeals.
1. Sturgess contends that the trial court erred by concluding that Zephyrine's death arose out of and in the course of his employment. We disagree.
Under OCGA § 34–9–11(a)
, the WCA is the exclusive remedy for injuries "by accident arising out of and in the course of employment."3
A felonious assault by a third party upon an employee is treated as an accident covered by the Act, so long as the wil[l]ful act is not directed against the employee for reasons personal to the employee.4 In order to determine if the assault occurred for reasons personal to the employee, we consider whether the injuries of which the employee complains (1) arose out of and (2) in the course of [his] employment. If these two conditions are met, the employee's tort claims are barred by the exclusive remedy provisions of the [WCA]. Accordingly, whether the attack [in this case] occurred for reasons personal to [Zephyrine] depends upon whether [his death] arose out of and in the course of [his] employment....5
It is beyond dispute that Zephyrine's death arose in the course of his employment because it occurred while he was on duty performing his job functions at his employment location.6 Accordingly, our analysis focuses on whether Zephyrine's death "arose out of" his employment.
Here, it is undisputed that Zephyrine's employment placed him in a locale that unfortunately exposed him to being shot by Lema. "It was only because of his employment that [Zephyrine] was at the [OA warehouse] on the morning of his murder and only because of his employment that he had any contact or relationship with [Lema]."15 Thus, the risk of being shot by Lema, while not peculiar to Zephyrine's workplace, was nevertheless connected to his workplace by virtue of where it...
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...conditions and obligations of the employment placed claimant in the position where he was injured.” Sturgess v. OA Logistics Servs., Inc. , 336 Ga.App. 134, 137, 784 S.E.2d 432 (2016) (quoting Chaparral Boats, Inc. v. Heath , 269 Ga.App. 339, 343, 606 S.E.2d 567 (2004) ) (emphasis omitted).......
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...employee to a common risk. See Chaparral Boats, Inc. , 269 Ga. App. at 341-43, 606 S.E.2d 567.10 Sturgess v. OA Logistics Servs., Inc. , 336 Ga. App. 134, 138 n. 11, 784 S.E.2d 432 (2016) (citation and punctuation ...
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...an issue in the positional risk cases cited by the defendants, as it is in this case. For example, in Sturgess v. OA Logistics Svcs. , supra, 336 Ga. App. 134, 784 S.E.2d 432 (2016), the court noted that it was "beyond dispute that [the employee’s] death arose in the course of his employmen......
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