Earlier this year, the Georgia Court of Appeals handed down two decisions that illustrate the tension between personal injury law and workers compensation law.<\/p>\n
Cain [not his real name] shot Abel [again, name changed to protect the innocent] in the back of the head at work and killed him.\u00a0 New on the job, Abel was waiting for instructions on how to get fuel for his fork lift.\u00a0 The Court of Appeals left plenty of room in its review of the facts to speculate that Cain might have been on drugs, and that he may have let jealousy get the better of him.<\/p>\n
Abel had talked to a female co-worker in the office about getting fuel for his forklift just before he got shot, and he had stepped out of the office to wait for a supervisor. \u00a0Abel and the female co-worker were casually acquainted outside of work but nothing in the facts suggest they were anything other than family friends.<\/p>\n
Cain went into the office when Abel came out.\u00a0 He tried to kiss the female co-worker, but she refused him.\u00a0 Cain then stepped out of the office, shot Abel in the back of the head, and went back into the office and tried to rape the co-worker before he passed out.<\/p>\n
Abel\u2019s mom sued Abel and Cain\u2019s employers for wrongful death, a statutory claim rather than a common law claim.\u00a0 Even though it is a statutory claim, a wrongful death claim allows damages -- a reimbursement in the form of money.\u00a0 A jury decides the amount of damages in a wrongful death case by calculating the value that the deceased would have put on his own life.\u00a0 If Abel\u2019s mom had brought a workers compensation action, which is also a statutory action, she would have been limited to the meager benefits that the workers compensation statutes allow.<\/p>\n
A wrongful death action wasn\u2019t the best available claim.\u00a0 It can allow a much larger money recovery than a workers compensation action, but it also requires proof of fault.\u00a0 The fault that Abel\u2019s mom alleged was that the employers shouldn\u2019t have hired Cain to begin with. \u00a0One of the employers supplied temporary warehouse workers to the other, and there was an agreement between the two employers that new hires would be screened with criminal background checks. \u00a0Cain got the job under an alias, he may have used a counterfeit photo ID to get the job, and even though the criminal record wouldn\u2019t have turned up under the alias that Cain used, the employer that promised to get the criminal background check never even bothered to get it.\u00a0 So everybody missed the fact that Cain was a convicted felon.<\/p>\n
The employers obviously had at least some degree of fault, but the wrongful death action was still a longshot. \u00a0Its easy enough to make out a vicarious liability claim against an employer, but not so easy to prove the employer\u2019s separate liability for negligent hiring.<\/p>\n
Look at it from the employer\u2019s perspective:\u00a0 If your employee hurts somebody while he\u2019s working in the course and scope of your business, you have a financial obligation to make the harm good.\u00a0 If your delivery person runs over a kid on a bicycle, you have to pay for the injuries.\u00a0 You share your employee\u2019s obligation to fix whatever harm she did because she was doing your business when she caused the harm.\u00a0 It makes sense.\u00a0 Vicarious liability is almost a given.<\/p>\n
But \u201cnegligent hiring\u201d means you shouldn\u2019t have hired the guy to begin with.\u00a0 This makes a lot more sense if you have a legal duty to screen your employees.\u00a0 For example, a trucking company has a duty to make sure its drivers have good driving records and that they have clean histories on random drug-screens.\u00a0 Daycare centers and after-school programs obviously have no business hiring known sex offenders.\u00a0 But hiring a known pothead to serve pizza and beer in the restaurant?\u00a0 If he\u2019s never going to drive the delivery wagon?\u00a0 How is that negligent?<\/p>\n
Abel\u2019s mom\u2019s case wasn\u2019t as completely hopeless as a case against an employer for having a pothead behind a pizza counter.\u00a0 After all, Cain\u2019s boss did let a convicted felon come to work with a handgun, but the defense would have gone something like this:<\/p>\n
\u201cLook, this guy did his time.\u00a0 We might have been ignorant of the fact that he did time, but he paid his debt to society.\u00a0 And we might not have known we were hiring a convicted felon, but we gave a guy a chance.\u00a0 How were we supposed to know he\u2019d shoot somebody at work?\u201d<\/p>\n
The employer wouldn\u2019t have been able to get away from the fact that it failed to get a complete background check on Cain, and a jury would probably take offense to the employer trying to avoid any fault at all.\u00a0 It\u2019s easier now because Georgia law has been changed in the last decade to allow wrongdoers to apportion liability among themselves \u2013 to say \u201cit\u2019s more his fault than mine\u201d in ways the\u00a0 common law would have never allowed \u2013 but insurance defense attorneys, or most of them, can\u2019t help themselves.\u00a0 They have to go for the goose-egg \u2013 a \u201c0\u201d behind the dollar sign on the jury verdict form.<\/p>\n
Still, it wouldn\u2019t have taken one of the salty-dog, egoless defense attorneys that you still run into from time to time, the ones who drink kerosene in their coffee, spit lead, and look like one of Johnny Cash\u2019s ghost-riders, to make the argument that Cain and only Cain should be blamed for Abel\u2019s death.\u00a0 A reasonably skilled defense lawyer could have beaten Abel\u2019s mom in a wrongful death case.<\/p>\n
So why did Abel\u2019s mom, or why did her attorneys, take the case down such a difficult path?\u00a0 Why did they steer directly into an almost certain loss?\u00a0 There was a workers compensation case right there in front of them. It\u2019s true that workers compensation cases allow paltry recoveries compared to what can happen in a wrongful death case, so maybe they just wanted a chance at more money.<\/p>\n
A wrongful death verdict can be in the millions of dollars.\u00a0 A workers compensation death cases, on the other hand, is limited to $550 per week (as of 2016), a cap of $220,000 on benefits for a dependent spouse without children can get, and a limit of $550 per week for until dependent children reach the age of 18.\u00a0 The \u201cpresent value\u201d of a workers compensation death case can never exceed more than three hundred to four hundred thousand dollars.\u00a0 So maybe the lawyers were overreaching, but I don\u2019t think so.\u00a0 I don\u2019t think they were being greedy.<\/p>\n
The workers compensation death claim would have been much more straightforward than the wrongful death case, and it would have required no proof of fault.\u00a0 In workers compensation, you don\u2019t have to prove the boss made a mistake that hurt you.\u00a0 You just have to prove something happened at work that hurt you. \u00a0The technical jargon is \u201caccident arising out of an in the course of employment,\u201d where \u201cin the course of\u201d means that you were at work, and \u201carising out of\u201d means that there is a connection between what happened your job.<\/p>\n
The workers compensation law throws a broad net that catches almost all work-related injuries.\u00a0 There was, however, a fatal flaw in in the workers compensation approach that wasn\u2019t obvious in the Court of Appeals\u2019 decisions.<\/p>\n
Abel was a young guy.\u00a0 The Court of Appeals doesn\u2019t specifically say so, but it doesn\u2019t look like he was married, it doesn\u2019t look like he had any children, and his mother probably didn\u2019t rely on him for financial support.\u00a0 If so, then there was no viable workers compensation case for Abel\u2019s death.\u00a0 Nothing.<\/p>\n
Without primary or secondary dependents, there is no recovery for death in a workers compensation case other than the funeral benefit that is capped at $7,500.<\/p>\n
The employer, as a defendant in a wrongful death case, had (or its insurance company had) at least some risk.\u00a0 They shouldn\u2019t have hired a convicted felon, and certainly shouldn\u2019t have let a convicted felon bring a gun to work.\u00a0 They were at risk of having to pay the money-value of Abel\u2019s life.\u00a0 There was no risk whatsoever for the insurance company in the workers compensation case.\u00a0 They\u2019d pay $7,500 against funeral expenses and be done.<\/p>\n
The employer filed a motion for summary judgment, \u2013 a motion to toss the case out of court \u2013 and the trial court granted it.\u00a0 The defense attorneys argued, and the trial court agreed, that the case was obviously a workers compensation case that had no business in a court of general jurisdiction.\u00a0 The case belonged in one of the workers compensation board\u2019s administrative law courts where it would be relatively worthless.<\/p>\n
The Georgia Court of Appeals issued two decisions.\u00a0 The first decision reversed the trial court, but the second affirmed it.<\/p>\n
In the first opinion, issued February 15, 2016, the Court of Appeals agreed with Abel\u2019s mom.\u00a0 Yes, Abel was on the job performing a routine task within the limits of his assigned duties as a fork lift operator, and yes, his death arose \u201cin the course of\u201d his employment, but the Court said there was no definitive connection between the shooting and the job.\u00a0 The Court of Appeals first decision would have reversed the trial court and allowed Abel\u2019s mom prosecute a wrongful death action, but then on March 10, 2016, the judges changed their minds.<\/p>\n
The insurance company\u2019s lawyers had filed a motion for re-hearing after the first decision.\u00a0 They argued that the Court of Appeals had ignored the positional risk doctrine.\u00a0 An example of positional risk is the bank teller who gets shot in a bank robbery.\u00a0 The gunshot injury arose out of the teller\u2019s employment because being a bank teller, like being a security guard or a police officer, puts you in the line of fire when a bank robbery is going down.<\/p>\n
Another example \u2013 let\u2019s say you work at a grocery store that is basically a flimsy metal building with a few concrete coolers in the stock room.\u00a0 A tornado hits the store, rips it to pieces like a house trailer, and you get hurt.\u00a0 You might have been safe if the boss let you hide from the tornado in the concrete-walled meat cooler, but he made everybody stand their ground and keep bagging groceries despite the storm.<\/p>\n
You might want to argue that the grocery store owner was at fault.\u00a0 He should have let you and the other employees take cover in a sturdier shelter, but the law would say that working in a flimsy, metal-framed building put you at \u201cpositional risk\u201d of injury from a tornado.\u00a0 You would have a workers compensation claim for your medical expenses and an income benefit capped at $550 a week for 400 weeks, or until you were able to go back to work, but under the workers compensation exclusive remedy doctrine, you would have no personal injury claim against the grocery store owner.<\/p>\n
Of course, the positional risk doctrine is not what Abel\u2019s mom\u2019s case really turned on.\u00a0 The second decision pivoted on a new footnote that the Court of Appeals added to the second decision.\u00a0 Remember that there was some suggestion that Cain shot Abel because of jealousy?\u00a0 In the new footnote, the Court of Appeals said,<\/p>\n
\"[T]here is nothing in the record to suggest that the attack on [Abel]\u00a0was motivated by reasons personal to [Abel] or related to his employment. Instead, it appears that [Cain] fatally shot [Abel]\u00a0simply because [Abel]\u00a0was in the wrong place at the wrong time.\"<\/p>\n
If there had been evidence that the shooting was personal to Abel, that Cain meant to kill Abel out of jealousy rather than just kill somebody in general, then the positional risk doctrine wouldn\u2019t have applied.<\/p>\n
In the end, the Court of Appeals reversed its own reversal of the trial court and unless she can prove that she depended on her son for support, Abel\u2019s mother\u2019s only remedy will be the $7,500 funeral benefit from the employer\u2019s workers compensation insurance company.<\/p>\n
The facts in this review occurred in actual decisions handed down by the Georgia Court of Appeals.\u00a0 I\u2019ve changed the names but if you are a practicing attorney looking for this case, let me know and I\u2019ll send you the cite.<\/p>\n","protected":false},"excerpt":{"rendered":"
Earlier this year, the Georgia Court of Appeals handed down two decisions that illustrate the tension between personal injury law and workers compensation law. Cain [not his real name] shot Abel [again, name changed to protect the innocent] in the back of the head at work and killed him.\u00a0 New on the job, Abel was […]<\/p>\n","protected":false},"author":2,"featured_media":890,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"slim_seo":{"title":"Case Review: Work Place Violence and the \u201cPositional Risk\u201d Doctrine in Workers Compensation Cases - K. Todd Butler, P.C.","description":"Earlier this year, the Georgia Court of Appeals handed down two decisions that illustrate the tension between personal injury law and workers compensation law."},"footnotes":""},"categories":[5,6,7],"tags":[],"class_list":["post-887","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-personal-injury","category-workers-compensation","category-wrongful-death"],"_links":{"self":[{"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/887","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=887"}],"version-history":[{"count":0,"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=\/wp\/v2\/posts\/887\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=\/wp\/v2\/media\/890"}],"wp:attachment":[{"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=887"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=887"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ktoddbutlerlaw.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=887"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}