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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
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rtaylor@caseygilson.com
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Smith, et al. v. Ellis (09/10/2012)

A co-employee may be sued in tort even after the claimant settles his Workers' Compensation claim if the co-employee was acting outside employment when he injured the claimant.

An employee who was accidentally shot in the thigh by a co-worker, entered into a "no liability" settlement with his employer that was approved by the State Board of Workers' Compensation. He then brought a negligence action against the co-worker.  The trial court entered summary judgment in favor of the co-worker on grounds the tort suit was barred by Workers' Compensation Act's exclusive remedy provision.  Employee appealed. Upon an equal division of the Judges of the Court of Appeals, the case was transmitted to the Supreme Court.

The Supreme Court of Georgia held that:

(1)         a "no liability" settlement barred employee from bringing an action for the same injury against an employee of the same employer;

(2)         the phrase "employee of the same employer" means a person who is acting as an employee rather than as a third party to the employment relationship at the time of the injury in question; and

(3)         fact question regarding whether co-worker was acting in the scope of employment precluded summary judgment in favor of co-worker.

In February, 2009, Smith and Ellis were both employed by The Knight Group, a company that builds and sells new houses.  Smith was assigned to work at the Westcott Place subdivision in Dawsonville, and Ellis was assigned to the Red Hawk Ridge subdivision in Cartersville.

On February 12, Ellis called Smith to arrange a meeting so that he could borrow one of Smith's tools for his personal use.  Ellis also wanted to shoot some new guns he had purchased.  The next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, since he was not supposed to be at Westcott Place. Later, Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times.  Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith's right leg and into his left leg, causing serious injury.

The Knight Group fired both men shortly after the shooting.  Smith filed a workers' compensation claim against the employer, alleging his injury was compensable because it arose out of and in the course of his employment. The Knight Group ultimately agreed to pay Smith $6,000 in exchange for his stipulation that he had not sustained a compensable injury. Pursuant to O.C.G.A. ยง 34-9-15(b), the "no liability" settlement was submitted to and approved by the Workers' Compensation Board, which issued an award denying the employer's liability on June 4, 2009.

Nine months later, Smith sued Ellis for negligence, and Smith's wife sued for loss of consortium. The Supreme Court recognized that if the victim is a co-employee, the Workers' Compensation Act may protect employees who commit torts of all varieties in the course of their employment. The question in this case was whether the Act protects an employee tort-feasor when the tort Is committed outside the course of the tort-feasor's employment.

The answer to that question was a factual matter, so the trial court's judgment granting summary judgment to Ellis was reversed, and the case remanded to the Court of Appeals with directions that it be remanded to the trial court for further proceedings.

 

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