An employee with a criminal record shot another worker to death. Can the dead worker’s mother sue the company for wrongful death, or is her lawsuit barred by the exclusive remedy of workers’ compensation?
OA Logistics Services Inc. contracted with Staffchex to provide temporary workers at a warehouse. Christopher Lema applied for a position with Staffchex but said his name was Christopher Young-Evans.
OA required Staffchex to perform criminal background checks on each worker, but Lema began working at an OA warehouse before his check was completed. Lema had a felony criminal record. His fake name turned up no prior criminal record.
On Feb. 24, 2012, Nickiford Zephyrine and Lema were working at the OA warehouse. Zephyrine had to find a supervisor to get fuel for a forklift he was operating and was waiting outside an office.
Lema entered that office and attempted to kiss the female co-worker there, who immediately pushed him off. Lema walked out of the office and shot Zephyrine in the back of the head, killing him. Lema then re-entered the office and sexually assaulted the female employee. Zephyrine and Lema hadn’t interacted before the shooting.
Zephyrine’s mother, Maria Sturgess, sued OA and Staffchex for wrongful death, claiming the two companies negligently conducted the hiring process, resulting in the hiring of a convicted felon who attacked his co-workers and killed her son.
Staffchex and OA sought to get the lawsuit thrown out. A trial court granted the request on the ground that the exclusive remedy of workers’ compensation barred the wrongful death lawsuit. Sturgess took her case to an appeals court.
Did death arise out of employment?
Sturgess argues the trial court erred by concluding that her son’s injury arose out of and in the course of his employment.
The appeals court said there was no question Zephyrine’s death arose in the course of his employment because it occurred while he was on duty. The question was, did it arise out of his employment?
Previous case law in this state (Georgia) held that the definition of “arose out of:”
“excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.”
In similar workplace assault cases in Georgia, decisions depended on the circumstances of the cases:
- In one case where an employee arrived for work at 5:00 a.m. and parked in the employee parking lot, she was assaulted by a person who she didn’t know but was later identified as another employee of the company. The court ruled the assault arose out of the worker’s employment because the early morning hour at which she was required to report to work and the location of the parking lot in an area of known criminal activity provided the connection to her job.
- In another case, the court ruled the sexual assault of a female bank employee by a male bank director while the employee was helping him conduct business in the bank vault couldn’t be traced to her employment. The court determined the risk of the attack wasn’t connected with the employee’s fulfillment of her job responsibilities.
In Zephyrine’s death, the appeals court ruled there was no connection between the attack and the workplace. His work didn’t require him to be in a location where there was a higher risk of injury or criminal attack. There was no evidence of any workplace dispute between Zephyrine and Lema.
Staffchex argued that the killing arose out of Zephyrine’s employment under the positional risk doctrine: the employee’s work brought him to a place where there was danger by requiring his presence where the hazard struck.
But the court ruled the positional risk doctrine originally arose to address “acts of God,” like a tornado.
Since the risk of random attack, as was the case here, was no higher at Zephyrine’s workplace than at any other place, his death didn’t arise out of his employment, and the exclusive remedy of workers’ compensation didn’t apply.
The trial court’s order to throw out the wrongful death lawsuit was reversed. Now Sturgess can go forward with her wrongful death lawsuit.
What do you think about this case? Let us know in the comments.
(Sturgess v. OA Logistics Services Inc., Court of Appeals of Georgia, No. A15A2139, 2/15/16)
