Swanson v. Lockheed Aircraft Corp.

• Court: Georgia Court of Appeals
• Writing for the Court: POPE; McMURRAY, P.J., and CARLEY
• Citation: Swanson v. Lockheed Aircraft Corp., 354 S.E.2d 204, 181 Ga.App. 876 (Ga. App. 1987)
• Decision Date: 25 February 1987
• Docket Number: No. 73485,73485
• Parties: SWANSON v. LOCKHEED AIRCRAFT CORPORATION.

Page 204

354 S.E.2d 204

181 Ga.App. 876

SWANSON v. LOCKHEED AIRCRAFT CORPORATION.

No. 73485.

Court of Appeals of Georgia.

Feb. 25, 1987.

Carl V. Kirsch, Atlanta, for appellant.

Tommy T. Holland, Atlanta, Robert P. Barton, Marietta, Barbara B. Holmes, Atlanta, for appellee.

POPE, Judge.

Appellant Wesley Swanson, Jr. was employed as a special courses instructor by appellee Lockheed Aircraft Corporation at its Marietta, Georgia plant. Lockheed contracts with numerous foreign corporations, which in turn send their employees to Lockheed for instruction. One such customer is Saudi Arabian Airlines, which sends many Saudi nationals to Lockheed for instruction. The record is replete with evidence that, as a group, the Saudi students were obstreperous, destructive and generally unwilling to submit to the authority of their American instructors. Because of this difficulty, Saudi classes generally were small with a student to teacher ratio of 12 to 1. Lockheed had recently decided to implement a new procedure, whereby two instructors would be in a class with 24 students. One of the instructors would teach while the other instructor would take a more passive role, such as sitting in the back of the room working on test papers or other course-related materials.

On the day the incident in question occurred, Swanson was sitting in the back of the room grading test papers while another instructor, Mr. Morgan, attempted to review the test. During this review, the students became increasingly loud and difficult to control; both instructors tried to bring the class under control. (The record indicates that disputes over tests were a common source of problems with the Saudi students.) When the students were dismissed for their break, one of the students, Khaled Al Quithmi, walked up to Swanson and handed him his test paper, saying that one of his answers had been incorrectly marked wrong. Swanson reviewed the question and informed Quithmi that the question had been taken verbatim from the class textbook and that the correct answer (not Quithmi's) was clearly given in the book. While Swanson and Quithmi were discussing the question, another instructor, Mr. Sain, walked into the classroom and, hearing the exchange, also reviewed the question. Sain started shaking his head and laughing and Quithmi asked him what was so funny. Sain told him that his answer was wrong and that he was funny. Sensing that the situation was getting tense, Swanson suggested to Sain that they go on their break. When Sain turned to leave the room, Quithmi uttered a profanity. Swanson grabbed Quithmi by the arm and reprimanded him for the use of profanity in the classroom. According to Swanson, the other students in the room "apparently thought that there was going to be a confrontation and gathered around as they do, because they stick very closely together." Sain then suggested to Swanson that they leave the classroom. Swanson and Sain walked outside, although they could still see inside the building through double glass doors. Swanson saw Quithmi walk down the hall and approach Mr. Reid, Swanson's supervisor. Although Swanson could not hear the exchange between the two men, he saw Quithmi make a comment to Reid and then make a choking motion with his hands. Swanson walked back inside the building and, admittedly angry, grabbed Quithmi by the arm and questioned him concerning his remarks to Reid. Reid then grabbed Swanson and asked him what was wrong. At this point Swanson noticed a group of students coming down the hall at a fast trot. Reid pushed Swanson against the wall, apparently in an attempt to protect him. The students surrounded Swanson and one of them hit him in the face, knocking his glasses off and one of the lenses out. Reid then pushed Swanson into an office, ending the confrontation. Management was called and the students were told to go home and cool off. Although Swanson could identify neither the students in the crowd nor the student who actually hit him, an eyewitness to the incident identified Mr. Amro Mattar as the student who struck Swanson.

Lockheed subsequently dismissed Swanson. On his notice of dismissal Lockheed stated that Swanson was being terminated for a violation of company rules, specifically Management Directive J-90, No. D-8, which provides for dismissal without notice for serious infractions of company rules "involving misconduct such as: ... (8) ... fighting...."

Swanson filed suit against both Mattar and Lockheed. Lockheed filed a motion for summary judgment, which the trial court granted. In its order granting Lockheed's motion the trial court held that Swanson's tort action against Lockheed was barred by the provisions of the Workers' Compensation Act, which provides the exclusive remedy for injuries compensable thereunder. OCGA § 34-9-11. The trial court also granted summary judgment for Lockheed on Swanson's wrongful termination claim, holding that because Swanson was employed for an indefinite period, he could be terminated at will. Swanson appeals.

1. We consider first Swanson's argument that the trial court erred in concluding that his common law claim for damages was barred by the Workers' Compensation Act. Swanson does not challenge the general rule that "in those instances where an employee's claim against his employer is one which is covered by the Act, his rights are determinable solely under its provisions and any rights or remedies otherwise available to him against the employer are excluded." Murphy v. ARA Svcs., 164 Ga.App. 859, 860-61, 298 S.E.2d 528 (1982). See also Evans v. Bibb Co., 178 Ga.App. 139(4), 342 S.E.2d 484 (1986). Rather, Swanson posits several arguments, which we will consider seriatim, that his injury is not an "injury by accident arising out of and in the course of employment" as provided in OCGA § 34-9-1(4) and as interpreted by relevant case law and thus is not compensable under the Act.

(a) Scheduled Break Exception. Swanson's first argument concerns the applicability of the lunch or rest break cases, because "[t]he assault and beating took place during a scheduled break when I was free to do what I wanted to do." We have stated the general rule as follows: " '[W]here the employee is free to use the time as he chooses so that it is personal to him, an injury occurring during this time arises out of his individual pursuit and not out of his employment. (Cits.) Of course, if the employee sustains an injury while conducting the employer's business or following job-related instructions during the "break," the injury is compensable. (Cits.)' [Cit.]" Home Indem. Co. v. Swindle, 146 Ga.App. 520(2), 246 S.E.2d 507 (1978). See also Twin City Fire Ins. Co. v. Graham, 139 Ga.App. 318, 228 S.E.2d 355 (1976). Clearly, even if the employee is on a scheduled break and even if the employee is free to use the break time as he pleases, if the employee is in fact engaged in employment-related activites, the injury is compensable under the Act.

The record is uncontroverted that at the beginning of the break period, Swanson was engaged in employment-related activities, to wit: discussing test results with a student. When he reprimanded Quithmi for his use of profanity, he was clearly engaged in activities incident to his position as an instructor. Although Swanson ultimately left the classroom and walked outside to take his break, he did in fact come back into the building in order to intercede in the discussion between Quithmi and his supervisor, which Swanson clearly believed was related to his earlier confrontation with Quithmi. It was while he was engaging in this activity that he was attacked. Swanson testified that he believed the attack was precipitated by the earlier dispute with Quithmi. We believe these facts unequivocally show that at the time Swanson was attacked, and at all times relevant thereto, he was involved in an on-going sequence of events that were clearly related to his employment activities and responsibilities. Under these circumstances, we find the scheduled break exception provides no basis to remove Swanson's claims from the operation of the exclusivity provisions of the Workers' Compensation Act.

(b) Swanson next argues that his injuries are not compensable under the Act because his injury was caused by the wilful act of a third person for reasons personal to him. OCGA § 34-9-1(4). "Whether the fight resulting in [Swanson's] injuries occurred for 'reasons personal to' [him], thereby excluding those injuries from workers' compensation coverage, depends upon whether the injuries arose out of and in the course of [Swanson's] employment with [Lockheed]. [Cit.]" City of Atlanta v. Shaw, 179 Ga.App. 148, 149, 345 S.E.2d 642 (1986).

In support of this contention Swanson relies on his affidavit filed contemporaneously with his brief in opposition to Lockheed's motion for summary judgment in which he makes the following statement: "The Kingdom of Saudi Arabia abolished slavery in 1962.... Until that year, the Saudis actively engaged in the Saudi black slave trade. Saudis are accustomed to viewing blacks in general as subordinate from their cultural point of view. I am a black man. I believe that the attack upon me was provoked in part by the fact that I [am] black.... I believe now that some of the actions of the Saudis were racially motivated." When asked in his deposition if he believed his race was related to the problems with the Saudi students, Swanson stated that "[t]here were times [when] I wondered if that was the case." However, Swanson also testified in his deposition that he knew of no instances of racial prejudice, and there is no evidence that any Saudi student ever made remarks to Swanson, or to any other black instructor, that would indicate prejudice due to the instructor's being black. Rather, the record is clear that the Saudi students presented a severe behavior problem to all the instructors regardless of their race.

Swanson contends,...