Ga. SC: Suit over gunshot injuries not barred by workers' comp provision

Jessica M. Karmasek Sep. 13, 2012, 4:00pm


ATLANTA (Legal Newsline) - The Georgia Supreme Court this week sided with an employee who was accidentally shot in the leg by a co-worker, saying the co-worker was acting as a "third-party tort feasor," not an "employee of the same employer," at the time of the injury.

In its ruling Monday, the Court pointed to a 2002 ruling by the state Court of Appeals, Ridley v. Monroe.

In Ridley, the Court of Appeals held that the state Workers' Compensation Act's exclusive remedy provision bars a lawsuit based on the same injury which the employee has already received a remedy.

More specifically, an employee who files an injury claim against his or her employer under WCA -- and receives compensation in exchange for a "no liability" settlement that is approved by the state workers' compensation board -- cannot turn around and sue the co-employee who caused the injury in a tort action.

In the appeal at issue, the appeals court was equally divided as to whether Ridley should be overruled. The case was sent to the state's high court for resolution.

"We hold that Ridley was correctly decided," Justice David E. Nahmias wrote for the Court.

"Thus, appellant Joseph Smith, having previously entered a board-approved settlement with his employer under § 34-9-15 (b) in exchange for compensation, would be barred from suing appellee John Ellis for the same injury in tort if Ellis qualifies as an 'employee of the same employer' as Smith, rather than a 'third-party tort-feasor,' as those phrases are used in § 34-9-11 (a)."

However, the Court noted that the evidence in the case does not establish "without genuine dispute" that Ellis was acting as "an employee of the same employer" at the time he injured Smith.

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 Feb. 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, including an AR-15 rifle, in an undeveloped field in the Westcott Place subdivision.

About 2:30 p.m. the next day, Smith met Ellis in an undeveloped field, which was a quarter of a mile away from the houses where Smith had been working.

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.

The bullet went through Smith's right leg and into his left leg, causing serious injury.

The Knight Group fired both men shortly after.

Smith filed a workers' compensation claim against the employer, alleging that his injury was compensable under WCA 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.

The "no liability" settlement was submitted to and approved by the state 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, Janet, sued for loss of consortium.

Ellis moved for summary judgment on both claims, arguing that the tort lawsuit was barred by WCA's exclusive remedy provision.

Relying on Ridley, the trial court granted summary judgment to Ellis.

Smith appealed, arguing that his tort action against Ellis was not barred by his workers' compensation settlement with The Knight Group because Ellis was acting as a "third-party tort-feasor" rather than as an "employee of the same employer" at the time of the injury.

The whole Court of Appeals heard the case and divided evenly, 6-6.

The state's high court, in its 25-page opinion, concluded that the trial court erred in granting summary judgment to Ellis and reversed the court's judgment.

"Ellis had worked little if at all that morning, and after lunch he did no work and actually hid his presence from a supervisor," Nahmias pointed out.

"Moreover, Ellis injured Smith during an activity their employer did not condone, much less direct."

From Legal Newsline: Reach Jessica Karmasek by email at

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