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Atlanta Widow Seeks Change to Georgia Exclusive Remedy, Sovereign Immunity

A woman whose husband was killed on-the-job in Atlanta while working for the city is seeking to challenge Georgia’s sovereign immunity and worker’s compensation exclusive remedy provisions.accident1

When her husband was killed, he was riding in the cab of a city-owned garbage truck, driven by his co-worker. Problem was, his co-worker was drunk. So drunk, in fact, his blood-alcohol level was three times over the 0.08 limit. (In commercial vehicles, the legal limit is 0.02, although the city has a zero tolerance policy.) Officials later found a bottle of vodka in the grass. Decedent had no alcohol in his system.

Her husband was thrown from the vehicle and died on impact. She too was a city employee. Her supervisors were the first to inform her of his passing.

They also told her all she could expect to receive was worker’s compensation death benefits from the city. This is for two reasons.

Normally, a drunk driver and/or his employer would be liable (the driver directly and the employer vicariously) for a person who drives drunk while working and causes harm. The case here would have been especially strong because there was evidence a city supervisor was aware of the driver’s two previous DUI convictions and the fact that he did not have the proper license to be driving the large vehicle. In fact, before the fatal crash, one of the driver’s supervisors had been suspended for a month for allowing this driver to operate a city vehicle, knowing his history of drunk driving.

However, there are two elements protecting the city here. The first is the fact that the decedent was himself a city employee. Because his death occurred while he was acting in the course and scope of employment, he was entitled to workers’ compensation. But workers’ compensation law prevents employees from taking further legal action against an employer or co-worker – regardless of whether the employer or co-worker acted with negligence.

The only exception would be if there was proof of gross negligence almost certain to cause harm or intentional harm. It’s not clear the circumstances of this case would meet this nearly impossible threshold.

The other barrier is the legal principle of sovereign immunity. Longstanding common law holds the state can’t be held liable for torts unless it expressly gives permission. There are a number of circumstances under which the state does give permission, per the Georgia Tort Claims Act. However, lawsuits by employees are barred under that act too.

An attorney for the woman questions why an employer would ever take steps to make the workplace safer if it can’t be held accountable.

Decedent’s widow has filed a lawsuit against the city anyway, as well as against the estate of the drunk driver, who died last year of unrelated causes at age 56.

It’s not clear how far she’ll get with the lawsuit, though workers’ compensation attorneys will be closely watching the progress of her cases.

As far as the proposed change in law, the Georgia General Assembly will meet again in January and will consider measures through March. If it is considered, it will happen during that window of time.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:

Widow wants accountability after husband’s death on the job, July 28, 2015, By Kaitlyn S. Ross, USA Today

More Blog Entries:

State ex rel. Tradesmen Int’l v. Indust. Comm’n – Permanent Total Disability, July 30, 2015, Atlanta Workers’ Compensation Lawyer Blog