Crook v. Six Flags Over Georgia
The Georgia Court of Appeals recently provided an opinion regarding the longstanding exclusive remedy provision under Georgia workers’ compensation law.
The exclusive remedy for an injured worker who sustains an injury arising out of and in the course of employment is provided by O.C.G.A. § 34-9-11(a) in the Georgia Workers’ Compensation Act (the Act).
In Crook v. Six Flags Over Georgia, Crook worked as a seasonal “scare actor” at Six Flags. Another employee drove Crook and other actors in a van. The van door was open, and Crook unfortunately fell out of the van and passed away as a result of the injuries.
Crook’s surviving spouse filed negligence and wrongful death actions against Six Flags and against the individual who drove the van. Six Flags filed a motion to dismiss and argued the trial court did not have subject matter jurisdiction over the tort claim due to the exclusive remedy provision of the Act. The individual driver also filed her own motion to dismiss based in part on a jurisdictional defense. Both defendants argued the burden of proof is on the plaintiff to prove the exclusivity bar does not apply. The trial court granted both defendants’ motions to dismiss and held the court did not have subject matter jurisdiction over the claims because of the exclusive remedy bar. In short, subject matter jurisdiction is whether a court has the power to hear a certain case.
The plaintiff appealed to the court of appeals. The plaintiff argued the trial court erred in deciding if the exclusive remedy provision applies is a question of jurisdiction and also argued the court erred in holding the plaintiff had the burden of proof.
The court of appeals in Kellog Co. v. Pinkston in 2001, explained there are few exceptions a plaintiff may assert to exclude the exclusive remedy provision: 1) when the injury is a disease not naturally arising out of an in the course of employment; 2) the injury is caused by a third party’s willful act due to personal reasons; and 3) the injury results from the employer’s willful misconduct. The court of appeals also cited to Smith v. Camarena, a 2019 court of appeals case where the court explained when a worker’s death is compensable under the Act, a plaintiff may not pursue a tort claim.
The court of appeals ultimately reversed and remanded the trial court’s order and held the trial court erred in treating the exclusivity bar as a jurisdictional question. The court of appeals further held the trial court erred in holding the plaintiff had the burden of proof. The court of appeals cited to several past cases which treated the exclusivity bar as an affirmative defense and not an issue of jurisdiction. In particular, the court explained, “. . . while it is true that if a claim falls within the Workers’ Compensation Act, the State Board of Workers’ Compensation has exclusive jurisdiction over it, this does not mean our courts lack jurisdiction to determine whether the exclusive-remedy provision applies to an employee’s tort action in the first place.”
The presiding judge provided a concurring opinion and asserted “there was never any textual foundation for this court to conclude that the exclusive remedy provision of the Georgia’s Workers’ Compensation Act divested courts of subject-matter jurisdiction over such cases.”
The appeals process to the Georgia Supreme Court was initiated on June 23, 2026, and the Supreme Court has not yet considered whether the Court will accept this appeal.
This case is currently being defended by Swift Currie attorneys Mark Webb and Thea Nanton-Persaud who will continue to monitor the matter and provide updates as appropriate.
The foregoing is not intended to be a comprehensive analysis of the full effect of these changes. Nothing in this notice should be construed as legal advice. This document is intended only to notify our clients and other interested parties about important recent developments. Every effort has been made to ascertain the accuracy of the information contained within this notice.
