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The normal course of employment should not include breaking up fights and taking an axe blow to the head, according to a recent DeKalb County, Ga., verdict. State court jurors awarded $1.2 million to the estate and survivors of Henry Foster, killed during a brawl at the DeKalb Collision Center April 19, 1995. The damages included $600,000 compensation on a wrongful death claim and another $600,000 in punitives. Foster v. Powell and DeKalb Collision Center, No. 97-A31761-3 (DeKalb St. verdict July 21, 2000). Though the defense claimed that the death occurred during the normal course of business, plaintiff’s attorney Joseph A. Weeks says there was nothing normal about Foster’s death. “A brawl is not really part of a paint and body man’s job,” he says. “It is a deviation from his employment.” The defense argued that because Foster was killed in the normal course of business, the shop insurer should be responsible for no more than the $21,000 it already had paid into the state’s injury trust fund and to cover medical bills and funeral expenses. The fight started at the DeKalb Collision Center when masonry workers James Allen Powell and his son James L. Powell accused the shop’s owner of not paying them for brickwork they had done for the shop. Soon the dispute turned into a melee. The plaintiffs and the defendants disagree on whether Foster took part in the fight, was trying to break it up, or was just a bystander. But when the fight had ended, Foster was dead — smashed in the eye with the blunt end of an axe head, according to the pretrial order. In 1996, James Allen Powell was convicted of involuntary manslaughter, and his son was convicted of aggravated assault. Foster’s estate and heirs sued the Powells and the shop, claiming wrongful death. Calling the defendants’ conduct “outrageous, willful and wanton,” Weeks sought medical and funeral expenses, and damages for wrongful death and pain and suffering, and punitive damages. FELLOW EMPLOYEE BLAMED During the civil trial the Powells argued that an employee of the collision center really killed Foster, and that he had willingly jumped into the fray. The two settled the civil case for $300,000 while the jury was deliberating. Weeks says it’s exactly the amount for which they would have been liable under the verdict. “It’s funny how things work out that way sometimes,” he says. But William E. Turnipseed, representing DeKalb Collision Center, calls the verdict “outrageous.” He says he will ask for a new trial when a final judgment is entered. If that request fails, he says, he will appeal. “It’s going to turn this little, arcane portion of comp law on its head if it’s upheld,” he says. ‘ERRANT BULLET THEORY’ Turnipseed says Foster’s death fits under the “errant bullet” theory: he was in the wrong place at the wrong time during the course of his daily work, and was injured by a blow not intended for him. Workers’ comp law, he says, should have barred the plaintiffs from seeking relief on a wrongful death claim. This case, he says, should follow the line of reasoning established by General Fire and Cas. Co. v. Bellflower, 123 Ga. App. 864 (1971): a person shot by chance at his workplace under conditions unrelated to the employee’s duties, “constitutes an injury arising out of and in the course of his employment.” He also cites Larson’s Workers’ Compensation Law Sec. 11.34 at 3-401 (1997 Ed.), explaining the base test for what constitutes an injury during the normal course of work: “the injury would not have occurred except for the obligations of the employment.” Foster, Turnipseed argues, was an innocent victim of an attack that had nothing to do with him. He took no part in the negotiations about the brickwork, and had no contact with the Powells before he died, he says. “Apparently seeing one of the Powells wielding an axe, Henry Foster left his work station and entered the yard just outside the building, and immediately upon doing so was struck in the head by an axe swung by defendant James Allen Powell at DeKalb Collision employee Rick Akins,” he wrote. ESTOPPEL CITED Also, Turnipseed says, Foster’s estate and heirs already collected medical and funeral expenses from DeKalb Collision’s insurer, so equitable estoppel should bar them from recovering against Foster’s employer. Neither State Court Judge Anne Workman, who handled the case before she moved to DeKalb Superior Court, nor Judge Wayne M. Purdom, who inherited the case, accepted the argument. They both ruled against the defense summary judgment motions related to the workers’ comp cap. Weeks says the $5,000 the insurance company paid to Foster’s mother amounted to an effort to stave off a bigger penalty later. “They went ahead and paid the limit toward the funeral expenses when it looked like they might be in trouble,” he says. “I don’t think that sat well with anybody.” Weeks adds that he’s not entirely sure that Powell killed Foster with the axe. Another employee at the shop, he says, claimed at the time to have nailed Foster by mistake with a pressure washer. The washer, which Weeks says could generate up to 1,000 pounds per square inch of force, would have been plenty to kill Foster if the stream hit him in the eye. “Clearly the jury in the civil case found the employer mostly liable,” he says. Though he expects an appeal from the defendants, Weeks says he thinks the case should hold up fairly well. “I’m pretty confident in it,” he says.

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