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Third-Party Co-Worker Lawsuit After Workers’ Comp Claim

On Behalf of | Oct 10, 2014 | Georgia Workers' Compensation |

After filing a workers’ compensation claim in Georgia, there may be other avenues of compensation available. These include third-party lawsuits, which can be brought against anyone from manufacturers of defective products to owners of a construction site where an injury occurred.In some situations, third-party lawsuits may be brought against co-workers if it can be shown their negligent actions were proximate cause of your injuries. However, there is one key point that must be proven in order to bring a claim in these cases. It will need to be proven the co-worker was acting outside the scope of his or her employment at the time he or she caused the injury.

The Georgia Supreme Court set this precedent rather recently in the 2012 case of Smith v. Ellis, reversing the precedent set previously by the Court of Appeals ten years earlier in Ridley v. Monroe. The principle question in Smith was whether a worker who files for – and receives – workers’ compensation in exchange for a no liability settlement with his employer is then allowed to turn around and sue the co-employee who caused the injury. The appellate court had answered “No” in Ridley, holding OCGA 34-9-11(a) bars such recovery because the employee has already obtained relief. The state supreme court held that while Ridley was correctly decided, and workers are barred from collecting compensation from co-workers acting within the scope of employment at the time of an accident, they may pursue damages from a co-worker as third-party if the co-worker was acting outside the scope of employment.

Our Atlanta workers’ compensation attorneys recognize that co-workers acting outside the scope of employment would be those who are either not on-the-clock or not performing duties consistent with furthering the goals of the company at the time of the accident. The determination will weigh heavily on the facts of the case.

It’s important to tread carefully in such situations because workers who claim a co-worker was acting outside the scope of employment (necessary to assert a third-party claim) don’t want to contradict the assertion that the claimant was still acting within the scope of employment (necessary for a successful workers’ compensation claim).

In Smith, defendant and claimant were both employed by the same company when defendant called claimant to arrange a meeting to borrow a tool for personal use. Defendant also wanted to shoot some new guns he’d purchased in a field near a subdivision where the pair were working. While the claimant was continuing to work on construction, organizing tools, defendant went to the back field and began firing his rifle. The gun jammed several times, but cleared the final round – striking claimant in the thigh, causing serious injury. Claimant sought – and received – workers’ compensation, as he’d been working at the time of the accident. He later filed a third-party lawsuit against his former co-worker, alleging he’d negligently caused the injury while acting outside the scope of employment. The state supreme court agreed he should be allowed to proceed with his case.

More recently, in the case of Curtis v. Lemna, the Arkansas Supreme Court held that a man injured by a work/sales-related golf-outing by a co-worker who drove their golf cart over a retaining wall would not be allowed to pursue third-party litigation against his co-worker because he was acting within the scope of employment, and was therefore indemnified.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-920-4708 .