In a decision issued March 11, 2021, the Court of Appeals of Georgia reversed a jury verdict of $8.6 million in damages against the employer of a stunt man killed during the filming of The Walking Dead. The stunt man, John Bernecker, was standing in as Mark, the character played by Griffin Freeman in the series.  As part of the episode, the fictional Mark was to be shot and then thrown off a balcony. During the first take of the scene, the stunt was interrupted and Bernecker unintentionally fell off the balcony.  He missed the “catcher system” designed to break his fall and struck his head on an unprotected area of concrete resulting in a fatal injury.

A jury found that John Bernecker was an independent contractor rather than an employee of Stalwart Films LLC and that Stalwart Films LLC and certain of its employees were liable for 94% of the damages*. The defendants asserted the immunity defense of the Georgia Workers’ Compensation Act, contending that Bernecker was an employee and therefore Stalwart Films LLC was immune from suit. Despite the finding by the jury, a three-judge panel of the Court of Appeals found that the undisputed evidence presented at trial established that Bernecker was an employee and that therefore his sole remedy was workers’ compensation benefits.

In support of their claim that Bernecker was an independent contractor, the plaintiffs relied upon the facts that Stalwart Films LLC (i) had issued Bernecker an IRS Form 1099, (ii) did not withhold any taxes, and (iii) did not provide any insurance to Bernecker. The Court cited longstanding law that the true test in determining whether someone is an employee or independent contractor is whether the employment contract gives or the employer assumes the right to control the time, manner and method of executing the work as distinguished from the right merely to require definite results in conformity to the contract. The Court relied heavily upon the contract with Bernecker which stated that it was for the employment of Bernecker. The Court noted that Bernecker could request only minor changes to assist him in performing the stunt, was directed as to exactly how he should act during the stunt, and had to appear at a specific call time on a specific day. He was expected to perform when told to, and his every movement and body placement were directed by Stalwart Films LLC.

Because it was determined that Bernecker was an employee of Stalwart Films LLC, Stalwart Films LLC and all of the employees of Stalwart Films LLC were immune from suit because of the immunity established under the Georgia Workers’ Compensation Act. Georgia has long been recognized as having one of the strongest workers’ compensation immunity provisions in the nation and this case is another example of the preference for finding an employment relationship to support finding employers immune from suit in Georgia.

Stalwart Fims LLC v Bernecker, Court of Appeals of Georgia, Case #A20A1896 (March 11, 2021) 

*The jury found that Bernecker himself was 6% at fault so the damages for which Stalwart Films LLC was responsible were reduced to 94%.

You can access this article written by Wade McGuffey by clicking HERE.