October 18, 2019

Can You Sue a Co-Worker for Negligence Following an On-the-Job Injury?

sue co-worker

The Georgia Supreme Court recently issued a very interesting decision about your right to sue a fellow employee for pain and suffering damages when the negligent act occurred at work and you are otherwise covered by workers compensation.

In the case of Smith v. Ellis, decided by the Georgia Supreme Court in September, 2012, both Ellis and Smith were employed by the Knight Group, a company that builds homes. On the morning of February 13, 2009, Ellis came by Smith’s house to borrow a tool for personal use. Smith was working at a new subdivision that was mostly empty land and Ellis decided to tag along because Ellis wanted to shoot his new shotgun in one of the empty fields.

Smith had finished his work for the day and was packing up his tools when Ellis accidently shot him while trying to clear a jam in the shotgun.

Smith thereafter filed a workers’ compensation claim against the Knight Group and a negligence action for damages against Ellis.  The Knight Group denied Smith’s claim and he eventually settled in a no liability stipulation.

A no liability stipulation means that the employer Knight Group denied that Smith was injured in the course of his employment but agreed to pay him a lump sum to close the file.

Ellis answered Smith’s lawsuit by asserting an exclusive remedy defense.

  • The exclusive remedy defense says that an injured employee cannot sue his employer for pain and suffering damages – his only, exclusive remedy is under workers compensation. The Georgia Court of Appeals has also ruled in a case called Thorn v. Phillips that the exclusive remedy provision bars an injured employee from suing a co-worker for a compensated on-the-job injury.

The Smith vs. Ellis negligence case was litigated and eventually found its way to the Georgia Supreme Court.. Smith argued that Ellis’ status as a fellow employee was not enough to protect him from personal liability in negligence if the negligent act (i.e. the shotgun blast) was not an act that arose out of and in the course of employment.

The Georgia Supreme Court agreed with Smith. By acting in a manner outside the scope of his employment, Smith was acting as a third party tortfeasor and not as a co-worker. Smith will therefore be allowed to pursue a claim for damages against Ellis.

What does this decision mean to you?

If your injury was caused by a c0-worker acting outside the scope of his employment, you may have the right to collect both from workers' compensation and from your negligent co-worker.

  • Damages for pain and suffering can be substantially higher than disability ratings in workers’ compensation.

Remember, however, that if you are injured by the negligent act of a co-worker, you must be very careful about what you say in your first report of injury to your supervisor and about what you say to your doctor. Your first inclination may be to protect a co-worker who is a friend, but such statements could limit your rights to pursue money damages later.

If you have been injured on the job due to the negligent act of a co-worker, please call me to discuss before offering your employer a recorded statement or answering extensive questions. My direct number is 770-351-0801.

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Jodi Ginsberg

Attorney Jodi Ginsberg represents employees who are injured on the job and who need medical care and missed wage benefits available under Georgia's workers' compensation laws.

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