On February 15, 2016, the Georgia Court of Appeals issued a ruling that an employee’s death at work did not “arise out of” his employment. In Sturgess v. OA Logistics Services, the appeals court reversed the trial court’s grant of summary judgment to the employer and temporary staffing agency holding that the risk of the random attack was no more heightened at the decedent’s workplace than at any other place.
Nickifor Zephyrine was a forklift operator who was placed at OA Logistics Services (“OA”) by temporary staffing agency Staffchex. On February 24, 2012, Zephyrine’s forklift ran out of fuel. He went to inquire with the supervisor about refueling. As he waited outside the supervisor’s office with his back turned, another temporary employee, Christopher Lema, entered the office and attempted to kiss a female co-worker. She immediately pushed him off. Lema stepped out of the office, produced a handgun, shot Zephyrine in the back of the head, re-entered the office, and sexually assaulted the female employee. Zephyrine was not aware of the assault, had not attempted to intervene, and had not interacted with Lema before that occasion.
Maria Sturgess, Zephyrine’s mother, sued OA, Staffchex, and Lema. OA and Staffchex moved for summary judgment, which the trial court granted on the ground the Exclusive Remedy Provision of the Georgia Workers’ Compensation Act barred the civil suit against them. Sturgess appealed that ruling arguing that Zephyrine’s injury did not arise out of and in the course of employment, and therefore, should have been allowed to proceed. The court of appeals agreed with Sturgess.
Because Zephyrine was on duty performing his job functions at his employment location, there was no question the death occurred in the course of his employment. The analysis by the court of appeals focused on whether it arose out of the employment. The court of appeals stated that death arises out of employment when there exists, “a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, “if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.”
The court confirmed it is a highly fact-specific analysis particular to the circumstances of each case. In this case, the court found there was no evidence of any connection between the attack and Zephyrine’s workplace. Zephyrine’s work did not require him to be in a location that heightened his risk of injury or criminal attack. The court also found there was no evidence that Zephyrine and Lema had any work-related dispute that escalated into the violence.
The temporary staffing agency tried to argue that the killing nevertheless arose out of Zephyrine’s employment under the positional risk doctrine. The court of appeals dismissed that argument as well stating that, “under the doctrine, an injury is not considered connected to the workplace if it is ‘a risk to which the employee would have been equally exposed apart from the employment, and therefore the injury was not related to or caused by the peculiar nature of a condition of the employment.’”
With that backdrop in mind, the court stated that in cases where employees are injured while traversing dark parking lots or high crime areas because of their employment, it makes sense that resulting injuries are connected to their employment, even if caused by third-party criminal acts. The court contrasted this case from others where the Exclusive Remedy Provision precluded a civil suit by finding there was no high-crime element to the particular workplace locale, nor was there any discernible risk of theft or robbery associated with this workplace. The risk of a random attack was no more heightened at Zephyrine’s workplace than at any other place.
The court’s decision in this case, although a fact-specific analysis particular to this case, seems to make it more difficult for an employer to defend a civil suit resulting from the criminal act of a third-party which occurred at work under the Exclusive Remedy Provision of the Workers’ Compensation Act. It seems that as long as the act did not occur in a high-crime locale, the courts may have to find it did not arise out of employment. The result could be several more civil suits being allowed to proceed against employers where the employee was injured by a third-party while at work.
