FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J, and BOGGS, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

February 15, 2016

In the Court of Appeals of Georgia

A15A2139. STURGESS v. OA LOGISTICS SERVICES, INC. et al. DO-105

DOYLE, Chief Judge.

Maria Sturgess appeals from the grant of summary judgment to OA Logistics

Services, Inc. (“OA”), and Staffchex, Inc., in her wrongful death claim against them

based on the death of her son, Nickifor Zephyrine. Sturgess contends that the trial

court erred by ruling that her claim was barred by the exclusive remedies provision

of the Georgia Workers’Compensation Act (“WCA”).1 Because the undisputed facts

show that Zephyrine’s death did not arise out of his employment, we reverse the grant

of summary judgment on that ground.

Summary judgment is proper when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law.

1

 OCGA § 34-9-11.
A de novo standard of review applies to an appeal from a grant of

summary judgment, and we view the evidence, and all reasonable

conclusions and inferences drawn from it, in the light most favorable to

the nonmovant.

2

So viewed, the record shows that OA contracted with Staffchex to provide

temporary workers to work at a warehouse owned and operated by OA. On February

16, 2012, Christopher Lema applied for a position with Staffchex using Christopher

Young-Evans as an alias. Certain portions of Lema’s application form were

incomplete, and his purported photo identification appeared different from his actual

appearance. OA required Staffchex to perform criminal background checks on each

worker before they were employed, but before Lema’s check was returned, he began

working at an OA warehouse. The check on the alias would eventually show no

criminal history, despite the fact that Lema had a felony criminal record. 

On February 24, 2012, still before the return of the criminal background check,

Lema was employed at the OA warehouse along with Zephyrine, who drove a forklift.

Zephyrine’s forklift ran out of fuel, so he went to an office area to inquire about

2

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1)

(486 SE2d 684) (1997).

2
refueling. He encountered a female employee who told himhe mightfind a supervisor

if he waited outside the office. As Zephyrine waited outside the office with his back

turned, Lema entered the office and attempted to kiss the female co-worker, who

immediately pushed him off. In response, Lema smirked, “stood back[,] . . . and

walked out.” Lema then produced a hand gun and shot Zephyrine in the back of the

head, re-entered the office, and sexually assaulted the female employee. During the

ensuing struggle, Lema inexplicably passed out, and the female employee fled,

warning the other employees in the warehouse. According to the female employee,

Zephyrine, who was a family friend, had not been aware of the assault, had not

attempted to intervene, and had not interacted with Lema before that occasion. 

Based on Zephyrine’s death, Sturgess sued OA, Staffchex, Lema, a John Doe

who allegedly supplied Lema the gun, and another corporate entity. Among the

allegations were claims that OA and Staffchex negligently conducted the hiring

process, resulting in the hiring of a convicted felon who attacked his co-workers,

killing Zephyrine. 

Following discovery, Staffchex and OA moved for summary judgment, and the

trial court granted it in favor of both parties on the ground that the exclusive remedy

provisions of the WCA bar Sturgess’stort claims against them. Sturgess now appeals.

3
Sturgess contends that the trial court erred by concluding that Zephyrine’s

injury arose out of and in the course of his employment. We agree.

Under OCGA § 34-9-11 (a), the WCA is the exclusive remedy for injuries “by

accident arising out of and in the course of employment.”3

A felonious assault by a third party upon an employee is treated as an

accident covered by the Act, so long as the wilful act is not directed

against the employee for reasons personal to the employee. In order to

determine if the assault occurred for reasons personal to the employee,

we consider whether the injuries of which the employee complains (1)

arose out of and (2) in the course of [his] employment. If these two

conditions are met, the employee’s tort claims are barred by the

exclusive remedy provisions of the [WCA]. Accordingly, whether the

attack [in this case] occurred for reasons personal to [Zephyrine]

depends upon whether [his death] arose out of and in the course of [his]

employment . . . .

4

It is beyond dispute that Zephyrine’s death arose in the course of his

employment because it occurred while he was on duty performing his job functions

3

 OCGA § 34-9-1 (4).

4

(Citations and punctuation omitted.) Burns Intl. Security Svcs. Corp. v.

Johnson, 284 Ga. App. 289, 290-291 (1) (643 SE2d 800) (2007).

4
at his employment location.5 Accordingly, our analysis focuses on whether

Zephyrine’s death “arose out of” his employment.

The words “arising out of” mean that there must be some causal

connection between the conditions under which the employee worked

and the injury which he received. The causative danger must be

incidental to the character of the employment, and not independent of

the relation of master and servant. The accident must be one resulting

froma risk reasonably incident to the employment. And a risk is incident

to the employment when it belongs to, or is connected with, what a

workman has to do in fulfilling his contract of service. It arises out of

the employment when there is apparent to the rational mind, upon

consideration of all the circumstances, a causal connection between the

conditions under which the work is required to be performed and the

resulting injury. Under this test, if the injury can be seen to have

followed as a natural incident of the work, and to have been

contemplated by a reasonable person familiar with the whole situation

as a result of the exposure occasioned by the nature of the employment,

then it arises out of the employment.

5 See id. at 292 (1) (b) (“An injury arises in the course of employment when it

occurs within the period of the employment, at a place where the employee

reasonablymay be in the performance of [his] duties, and while []he isfulfilling those

duties or engaged in doing something incidental thereto. This statutory requirement

relates to the time, place and circumstances under which the injury takes place.”)

(punctuation omitted).

5
Contrarily, the definition 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.6

This analysisis highly fact-specific and particular to the circumstances of each

case. For example, in Helton v. Interstate Brands Corporation,

7

thisCourt addressed a scenario in which the plaintiff arrived for her 5:00

a.m. shift and parked in the employee parking lot of the defendant

company. As plaintiff exited her car, she was assaulted by a person who

was unknown to her, but who was later identified as another employee

of defendant. Plaintiff wasforcibly taken by the assailant in his car to an

area away from the plant where she was again assaulted and then raped.

This Court affirmed the finding that the injuries from the assault arose

out of the plaintiff’s employment because the early morning hour at

which plaintiff was required to report to work and the location of the

company parking lot in the vicinity of an area of known criminal activity

provide the causal connection with her employment.

8

6

(Footnote and punctuation omitted; emphasissupplied.) Dawson v. Wal-Mart

Stores, Inc., 324 Ga. App. 604, 607 (2) (751 SE2d 426) (2013).

7

 155 Ga. App. 607 (271 SE2d 739) (1980).

8

(Footnotes and punctuation omitted.) Dawson, 324 Ga. App. at 607-608 (2).

6
In another similar case, Kennedy v. Pineland State Bank,

9

the Court held that

a sexual assault of a female bank employee by a male bank director while the

employee was helping him conduct business in the bank vault could not be fairly

traced to her employment.

10 The Court’s rationale was that the risk of such an attack

was not in any way connected with the employee’s fulfillment of her responsibilities

of employment.11 Thus, the question in these cases turns on whether there are facts

showing a discernible causal connection between the injury and the employee’s work

or workplace.12

In the present case, as in Kennedy, the record is devoid of any connection

between the attack and Zephyrine’s work or workplace. Contrary to cases where a

violent attack was connected with an employee’s required presence in a high-crime

9

 211 Ga. App. 375 (439 SE2d 106) (1993).

10

 See id. at 375-376.

11

 See id. at 376.

12

 See, e.g., Dawson, 324 Ga. App. at 607-609 (collecting cases).

7
area,13

a dark parking lot at unusual hours,

14

or a high-risk area late at night,

15

Zephyrine’s work did not require him to be in a location that heightened his risk of

injury or criminal attack. Nor is there evidence that Zephyrine and Lema had any

work-related dispute that escalated into violence.16

Staffchex argues that the killing nevertheless arose out of Zephyrine’s

employment under the positional risk doctrine, which holds that

an accidental injury arises out of the employment when the employee

proves that his work brought him within range of the danger by

requiring his presence in the locale when the peril struck, even though

any other person present would have also been injured irrespective of

his employment.

17

13

 See Burns Intl. Security Svcs. Corp., 284 Ga. App. at 292-293 (1).

14

 See Dawson, 324 Ga. App. at 609 (2).

15 See Gen. Fire & Cas. Co. v. Bellflower, 123 Ga. App. 864, 869-870 (4) (182

SE2d 678) (1971) (holding that a felonious assault of a bus driver who was eating out

late on a required layover arose out of his employment).

16 Compare DeKalb Collision Center, Inc. v. Foster, 254 Ga. App. 477, 481 (1)

(562 SE2d 740) (2002) (holding that the trial court should have granted the

defendants’ motions for directed verdict and judgment n.o.v. because the plaintiffs’

tort claims for the death of their father were the consequence of an on-the-job fight

and were therefore barred by the exclusive remedy provision of the WCA). 

17 Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 341 (1) (606 SE2d 567)

(2004).

8
But this doctrine originally arose in Georgia to address “acts of God,” such as a

tornado at the workplace,18and later cases applying the doctrine have explained that

“[t]he general rule still applies that the injury does not arise out of the employment

where the causative danger is not ‘peculiar to the work’ in a way that causally

connects the employment to the injury.”

19 Thus, under the doctrine, an injury is not

considered connected to the workplace if it is “a risk to which the employee would

have been equally exposed apart from the employment, and therefore the injury was

not related to or caused by the peculiar nature of a condition of the employment.”20

Viewed in this way, in cases where employees are injured while traversing dark

parking lots or high-crime areas because of their employment, it makes sense that

resulting injuries are connected to their employment – even if caused by third-party

criminal acts. Here, by contrast, there was no high-crime element to this particular

workplace locale, nor was there any discernible risk of theft or robbery associated

18 See Nat. Fire Ins. Co. v. Edwards, 152 Ga. App. 566 (1) (263 SE2d 455)

(1979).

19

 (Emphasis supplied.) Chaparral Boats, Inc., 269 Ga. App. at 343 (1)

20

 (Punctuation omitted; emphasis supplied.) Id. 

9
with this workplace.

21 The risk of a random attack was no more heightened at

Zephyrine’s workplace than at any other place. Therefore, based on the undisputed

facts before us, the positional risk doctrine does not demonstrate that Zephyrine’s

death arose out of his employment at the OA warehouse.22

For the reasons outlined above, the trial court erred by ruling that the exclusive

remedy for Zephyrine’s death was compensation under the WCA. 

Judgment reversed. Phipps, P. J., and Boggs, J., concur.

21 Compare Peterson v. Rtm Mid-America, 209 Ga. App. 691, 693-694 (2) (434

SE2d 521) (1993) (holding that, under Michigan law, the death of a restaurant worker

who was killed by a co-worker asthe co-worker robbed the restaurant arose out of the

decedent’s employment under the positional risk doctrine).

22 The appellees urge that we affirm the trial court’s ruling under the “right for

any reason” rule. The trial court’s order was brief and did not consider any issues

other than the exclusive remedy of the WCA. Having addressed thatruling, and based

on the record and briefing before us, we decline to exercise our discretion to explore

other reasons to affirm the trial court’s judgment. See generally City of Gainesville

v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002) (explaining that the applicability

of the right for any rule is discretionary based on the issues, facts, and trial and

appellate briefing).

10