Georgia Employee’s Estate May Move Forward With Tort Action Regarding Parking Lot Shooting
Where a grocery store employee was shot and killed in an apparent robbery attempt in the parking lot adjacent to the store, but after the employee had ended her work day, had clocked out, and was standing in the lot talking to another employee and her husband, there was an issue of fact as to whether her fatal injury was compensable under Georgia’s Workers’ Compensation Act, held a state appellate court [Smith v. Camarena, 2019 Ga. App. LEXIS 631 (Oct. 30, 2019)]. Accordingly, a state trial court erred when it granted summary judgment in favor of the grocery store in a wrongful death action filed against the store by the estate of the deceased employee on the basis that the action was barred by the exclusive remedy provision of the Georgia Act.
Background
On the evening of the fatal shooting, as the store was closing, the employee clocked out and left the store. She remained in the parking lot talking with a co-worker about matters unrelated to work. At the time, the co-worker sat in an auto with the co-worker’s husband, with the employee standing near the vehicle in the parking lot.
The parking lot was owned and controlled by the grocery store’s landlord. It was open to the public and served several business in the small shopping center. As the women talked, another car approached. Two men got out. One of them, wearing a mask, pointed at gun at the employee, the co-worker, and her husband, demanding their purses and wallet.
Meanwhile, the assistant manager, who had locked the store, got into a van driven by his wife. Seeing the robbery in progress, the assistant manager got out of the van and yelled for the robbers to stop. One of the robbers turned and fired a gun at the assistant manager, striking the van. The assistant manager, who was armed, returned fire. After additional shots were fired, the robbers fled in their vehicle, but the employee had been fatally shot in the exchange of gunfire.
Appellate Court’s Reversal
The Court noted that the facts were similar to those in Tate v. Bruno’s/Food Max, 200 Ga. App. 395, 408 S.E.2d 456 (1991) in which an employee’s injuries, occurring during similar circumstances, was found not to be compensable. In the instant case, the Court indicated that at least the evidence here raised a fact question as to whether the defendants could satisfy the “in the course of” employment requirement. Accordingly, that fact issue precluded summary judgment.
Positional Risk Doctrine Does Not Apply
One of the arguments put forward by the employer dealt with the positional risk doctrine. In short, the employer/grocery store contended that notwithstanding the evidence that the store did not own or control the parking lot, the positional risk doctrine applied. Under that doctrine, argued the employer, the injury is compensable if the employee’s work brought her within a range of danger by requiring her presence in the locale when the peril struck, even though another person not so employed would also have been injured irrespective of employment.
The Court said the flaw in the argument resided in the fact that the positional risk argument addressed whether the injury “arose out of” the employment, not whether it occurred “in the course of” that employment. In order for the exclusive remedy provision to apply, the employer must show both (a) that the injury arose out of the employment and (b) that it occurred in the course of that employment. Here, the employer had failed to show both requirements.
Again, the Court observed that issues of fact precluded summary judgment and the trial court’s determination was reversed and the case remanded.