Published on:

Forklift worker shot and killed by co-worker is entitled only to workers comp benefits

just-a-forklift-1439915The Georgia Court of Appeals has held that when a temp worker is randomly shot and killed by another temp worker at the employer’s facility, Georgia’s exclusive remedy provision of the workers compensation act applies.  This means that the only legal remedy the family of the deceased employee is entitled to is workers’ compensation death benefits.  Such death benefits are payable to the surviving minor children until they are no longer minors and/or to a dependent surviving spouse.

In this case, the mother of the worker who was killed sued the employer in negligence for failing to perform a reasonable background check on the man who killer her son.  The facts on appeal showed that the assailant applied for work with the staffing company and used a false name, false picture identification and also failed to completely fill out the application for employment.   The employer who was leasing the temp workers required the temp company to perform criminal background checks on all loaned employees.   The assailant was assigned employment with the employer before his criminal background check was completed.  Even if the background check had been performed, the alias he provided would not have shown a criminal history.

The employee who was shot operated a forklift that ran out of gas.  He went to supervisors to ask about the procedures for refueling.  There was a female employee in the office who told him to wait outside the office for a supervisor.  While he waited, the assailant entered the office and attempted to sexually assault the female employee.  The forklift operator did not witness this assault.  When the female stopped his advance, the assailant left the office, drew a handgun and shot the forklift driver in the head.  After this, the assailant returned to the office and sexually assaulted the female employee.  For reasons unknown, the assailant passed out while struggling with the female worker.   The female worker fled and warned others and she testified that the forklift driver had not interacted with the assailant in any way before being shot and killed.

Under Georgia Workers’ Compensation law, workers compensation benefits are the only remedy for workers who are killed or injured by accident arising out of and in the course of their employment.  In other words, injured workers cannot sue their employers based on claims of negligent and then recover damages in tort, such as pain and suffering or wrongful death damages.  In the case of workers who are attacked and killed by co-workers, an exception to this rule is when the assault occurs for reasons that are purely personal to the employee.  If the injury or death (1) arises out of and (2) in the course of employment, all tort claims are barred.

In this case it was undeniable that the death occurred in the course of employment because the worker who was killed was clearly performing his job.  The more difficult question posed by these facts was whether  the death arose out of his employment.  This means that there has to be some causal connection between the job being performed and the injury which ensued.  If an injury can be said to have followed as a natural incident of the work being done, then it arises out of the employment.  If the employment was not a contributing cause of the injury, then it can be argued that the injury does not arise out of the employment.

In this case, the employer relied on what is known as the positional risk doctrine which states that an injury does arise out of employment when the work the employee was doing brings him in the range of a danger because he is required to be in the place when danger strikes even though any other person present, employee or not, may also have been harmed.  This rule benefits injured workers who would otherwise be left without a remedy where they have no possibility of recovering under a negligence claim against a third party.   In this particular case, this doctrine becomes a double edged sword in that this forklift driver could have had a chance for a more significant recovery under a claim for negligence.   For this doctrine to apply, it need only be shown that the employment required the employee’s presence at a particular location and at a particular time and at this place and time he was confronted with the risk, although the risk is completely random to the employment.