*1 time he executed Lee at the undue influence over that Dean exercised that, time at the show circumstantial evidence the will. There that will, exercising such force duress Lee Dean executed To the her for his own. substituting will destroyed agency, his free she Lee initiated evidence shows that contrary, the uncontradicted telling her without will, to Peters’ office drove her drafting the will out her destination, with Peters about and conferred their subscribing witnesses to be Moreover, appeared Lee presence. he exe- Although present Dean was when own free will. acting of his room, did not will, side of the far cuted the she was seated evidence of Thus, slightest not the we find that participate. influence, concluding erred in otherwise. superior court undue denying reasons, erred in ad- superior court foregoing For the probate. Lee’s mission of will Weltner, J., concur, except All the Justices
Judgment reversed. who dissents. Decided March
Rehearing 28, 1985. denied March Fowler, Jr., Fowler, appellant. for & Larkin M. Short III, appellee. for McCalley, Kirbo & Thomas Kirbo al. v. NEWTON et 41336. SYNALLOY CORPORATION Weltner, Justice. (formerly Augusta employees Synalloy Corporation
Former among Company) alleging, things, Chemical filed suit tort other (BNA), Synalloy exposed beta-napthylamine negligently them dangers expo- and failed to warn them of the carcinogen, known Williams, employed by plaintiffs, sure. Two of the Newton and were employed Synalloy prior plaintiff to 1971. The Samuels was BNA plaintiffs relationship between None oí1the learned physical for cancer until at which time suit was injuries. mental
Synalloy summary judgment, claiming supe- moved County because the exclu- jurisdiction rior court of Richmond lacked provision of sive was the the Workers’ Compensation Act, OCGA 34-9-280. The motion was denied. The affirmed, Appeals holding pre-1971 Court of had against Synalloy, post-1971 employ- common and that law tort action injuries fall jury ees were entitled to a determination whether the Corp. v. within the definition disease. Newton, granted We certio- rari to examine Appeals’ interpretation the Court of of OCGA 34-9- (3) (F) lists five criteria met which must be before disease which is incurred as result of to some harmful substance will be deemed an disease. OCGA § (b) provides that workers’ claims for occu *2 pational diseases year must be within “the inju one after last exposure” rious to the substance. contends that workers’ the is exclusive the employees. agree. available to We
It is axiomatic that legislature the com- intended that workers’ pensation be exclusive an employee who suffers an oc- cupational disease, 34-9-289, OCGA and the State Board of Work- Compensation claim, ers’ be hearing the sole tribunal OCGA § (3) (F). Although claim coverage comes within the of the Act, it does not is always compensable. follow that it Nowell v. Stone Railroad, Mountain Scenic (as
An from an stemming disease defined Act) is however, within the coverage compensable, of the Act. It is not disability. without a — upon very claimants seize circumstance instance have all statutory five elements combined create compensable they claim to insist that have a tort action under provisions 34-9-289, of OCGA “An em- providing part as follows: ployee who disability any occupational suffers from death disease not listed in any Code 34-9-280 shall not be deprived of common Because, say, under existing law.” it cannot be estab- they presently lished that all requirements meet of subparagraph (F), have, therefore, supra, they right a common law of action. First,
With disagree. quoted over, this we language is held 1 (F) occupational diseases, provided employee’s dependents Other or the prove (or Compensation first satisfaction the State Board Workers’ the medical board, controversy 34-9-311) if the matter is referred to it under Code Section of the following: (i) performed A direct causal connection between the work conditions under which the disease; (ii) exposure by That the disease followed as a natural incident reason employment; (iii) employee may That the disease is not of a character to which the had substan- exposure employment; tial outside of the (iv) general public That the disease is not an which disease life to exposed; (v) appear origin That the disease must have had a risk connected with the consequence. and to have flowed from source a natural purposes partial subparagraph, hearing For the of this loss of due to noise shall be considered an disease.
unchanged recognized then diseases when all of the from the time i.e., amend- name, “listed.” were identified (without limiting category, generically defined, ment such another added thereby by undertaking expanded coverage to “list” each disease quoted included). genesis p. 103, which the See Ga. portion § 34-9-289. of OCGA (F) merely Second, a checklist of circumstances is not subsection compare potential
against tory, symptoms, his medical his- claimant each (F) contrary, experience. subsection To the and work “occupational part description large disease.” of the term is Thus, (iii) (F) provides is not of a “That disease subsection when exposure employee may have had substantial character which the particular employment,” held refer to the it cannot be outside the exposure possible employee, of that and of the of a named ailment employee spe- given in circumstances not related to to a disease contrary, employment. is the “character” To the cific controlling. which is very provides example, inasmuch This case an excellent (BNA) beta-napthylamine
disability flowing would employee may have had “not of a character to be disease employment.” Further, under the outside the substantial *3 (F) (iv) assuredly provisions it is is the case that a disease of subsection stemming disease of life to to BNA “not might general public exposed.” analyses Similar be is (F). subparagraph other constituent elements of drawn from the Hence, As- it as diseases the General is seen that sembly Compensation Act into a com- has converted the Workers’ not — pursuing plex every employer pute any portion every jury of worker tort action and dis- issues wherein — might resisting a claim statutory descrip-
of of the five elements of the pro- interpret nullify goal of tion. To so ducing it would the statute and disability, independent job-related of fault. stated benefits for Appeals pre-1971 employees, held As for the Court employment, their at the termination of and that claims had accrued relief, had not were entitled to seek tort as 1971 amendment passed time. been at that respectfully disagree. At
With this conclusion we such time which, law, there shall combine cre- co-exist elements action, vested, is be ate a cause of thereafter cannot be diminished that cause of action deemed to and
by legislative
time,
act. Before that
ultimately might
however, when
combine to cre-
the elements which
yet
inchoate,
deline-
the cause
action are
a new statute
ate
ate
any cause of
shall mature after its effective date.
action which
462) (1982).
(297
Corp.,
Hart v.
In Georgia, a cause of action tort does not vest until three ele- (1) (2) ments person reasonably exist: learns or injured; and injury; reasonably should have of the learned and learns should Seitzinger’s, Inc., King learned of cause of the v. injury. (287 252) (1981). App. SE2d Because the 1971 amendment compensable enacted before the of any injury, occurrence statute as amended must pre-1971 be exclusive for the employees. Thus, plaintiff has a common action tort. Synal- While workers’ compensation is the exclusive loy’s employees, disability. can plain- be no claim without As no yet disabled, tiff (b) (1), has become as required by OCGA 34-9-281 none has at this time a workers’ claim.
We
in occupational
note that
legislature
disease cases the
has al-
one-year
lowed for
period
of limitations between
disability,
likely
restrictive,
many
too
for in
cases a cause of
action will be
presents
barred before
arises. That
substantial consti-
questions.
tutional
See Clark v. Singer,
Gregory, I disagree analysis with the the judgment majority opinion respectfully dissent.
Appellees Corporation are former of Synalloy who sued in seeking alleged tort damages injuries suffered when ex- posed (BNA). carcinogen, beta-napthylamine de- fended in part on a contention com- suit was barred because workers’ pensation laws provided remedy. Summary judgment exclusive sought ground on this but was denied the trial court. Appeals Newton, Court of Synalloy Corp. affirmed. granted Certiorari was con- because our
cern with the interpretation provisions Compensation the Workers’ Act. OCGA 34-9-280 thru 292. §§ complaint August filed Richmond Superior *4 Court, plaintiffs alleged they the three employees Synalloy were of or predecessor during years time, through During 1949 1972. that Synalloy alleged, manufactured and the chemical BNA used Synalloy which knew or should was cancer causing have known agent affecting urinary system. the bladder They alleged and also that plaintiffs appreciate did not know or of BNA until on or dangers Synal- about allegations negligence November 1981. Several of of loy specified were proximate injuries and claimed to be the cause of damages Synalloy summary suffered. filed a motion for judgment
178 covered under OCGA plaintiffs of were contending the claims (3) (F) as tort actions be and therefore could not remedy. In con- the exclusive compensation provided since workers’ follow, counsel, motion, any might which appeal nection with the produce a were able to very undertaking, conferred and helpful in a plaintiff, There it disclosed undisputed of facts. statement Newton Samuels, Roger in 1972. James his began David Williams, em- C. Jr. was days in 1970 and Jesse employed predecessor and its Synalloy prior for a time ployed period of In the Geor- to 1972. BNA from 1949 sometimes manufactured necessary precau- that the Department Public Health determined gia BNA, of in 1972 the Na- in but being production tions were taken Synalloy Occupational Safety and Health notified tional Institute of as it would BNA was not safe the method manufacture of manufacturing BNA. Synalloy recommend. Within a week ceased Safety began Health Occupational 1977 the National Institute of danger of notifying former program this suit BNA. Thereafter was filed. I exclusiveness workers’ regarding first turn to issue
compensation plaintiffs. as a for these cov- claim is Synalloy points are when a out that occasions compen- it by compensation ered workers’ is a claim without but Baird, App. Co. sability. Manufacturing Blue Bell Globe 105) (1941); v. Stone Mountain Scenic Rail- Nowell (1979). road, Synalloy particularly Kerr-McGee in Silkwood v. points publicized opinion to the much (10th 1982), part, 104 SC 615 Corp., reversed 667 F2d 908 Cir. by hypothetical case of point vividly made there causing pain and suffer- a worker who hit his thumb with a hammer by ing no be covered but loss time. The accident would be There and a common tort suit would barred. such an would be award in a workers’ claim because compensable. result seem to would be As hard However, some, ap- is probably everywhere. though the rule even gov- plied majority, principle would hold it not the statutory con- peculiar erns this We have matter of case. before us provision struction the limited field of diseases. governing disease cases exclusiveness is OCGA 34-9-289: Georgia chap- subject an to this employer employee
“Whenever ter, disability liability for the or employer under this article any way in- employee death of employ- curred in the of or because of such course liability civil place ment shall be exclusive and in and all other to his whatsoever at common law or otherwise to such *5 personal kin, representative, spouse, parents, any next of or guardian, employee any others. An disability who death occu- suffers from pational disease not listed in Code deprived 34-9-280 shall not be § rights existing common law under (Emphasis supplied.) law.” briefly To understand this provision legis- one must consider the history. lative The Code of compensa- 1933 excluded from workers’ tion all coverage except resulting diseases those from an accident. Ga. 1933, Code 114-102. covered, Accidents were but diseases were not. § The Code made no distinction ordinary occupa- between diseases and tional All provision diseases. were excluded. There was a an limiting employee suffering from an rights “accident” to the under afforded 1933, compensation workers’ law. Ga. Code 114-103. Those affected by diseases were left might whatever remedies be available elsewhere. rapid
The growth industrial II World War focused attention on harmful “elements, metals, effects endured from use of by-products” process. L., chemical Morgan, the manufacturing “Occupational Diseases Under the Georgia Compensation Workmen’s Act,” 8 Mercer Law Review 333 The new legislature added a chapter to the existing compensation workers’ in 1946. It code under the workers’ umbrella certain enumer- occupational (1) ated They diseases. poisoning were limited to four: (2) (by certain agents); by exposure diseased x- condition caused rays (3) substance; asbestosis; (4) or radioactive silicosis. remedy given for occupational the four diseases was made the exclu- remedy. sive All existing common law reserved under laws were 1946, for diseases not p. listed. Ga. L.
In 1971 category the Code was amended add another occu- pational diseases, beyond provision It original four. was a broad occupational which included those where diseases could (It prove all of the elements: is now following (F) (i ii).) thru
“(a) A direct causal connection between the conditions under (b) disease; is performed work that the fol- disease exposure lowed as a natural incident of of the employment; reason (c) may the disease is a character to which the (d) exposure employment; had substantial outside of the the disease is not general pub- an disease of life to (e) is exposed; origin lic that the appear disease to have had in a risk connected with the employment and have flowed that source as a natural consequence.” pp. provision governing in the changed exclusiveness was not occupational
1971 Act. Common law remedies were still available for spe- diseases not It is four listed. obvious the amendment prior cific in- diseases Act did not undertake to meeting remaining diseases, but those elude (c) Particularly illuminating One can above. is criteria five criteria. well curred imagine oc- the harmful element disease where job part part The combination and in elsewhere. on the yet exposures bring harm, this would fail about two qualify occurred if “substantial employment.” been re- have not Common law remedies outside placed by It is for such a disease. remedies OCGA 34-9-289. “not listed.” *6 bring legislature cer- it, was to Thus, I the intention of the as see compensa- occupational all,
tain, under the but not diseases specifically occupational is one disease tion umbrella. Unless named, only if it laws comes under the workers’ it (3) (F). rec- I § As read meets the five criteria OCGA disputed de- If the fact finder ord, fact about this. issues of compensa- met, is workers’ case a termines the criteria have been tion proceed may proceed not, forum. If the case and must in that case I it was not error a law tort would hold as common action. deny summary judgment and that the to to trial court Appeals correctly part of trial court’s Court of order. affirmed (F) par- majority not refer to the The hold that subsection does interprets opinion employee. Instead, a ticular ailment of named the subsection to pos- identify which a disease must characteristics way. I sess. do not read it that “occupational means those statute first states that disease” (3). Reading on, one finds five dis- diseases listed. OCGA 34-9-280 eases (A) (B) by by exposure poisoning, name, disease caused listed (E) (C) (D)
X-rays substances, asbestosis, silicosis, or radioactive (Added 2489.) byssinosis. by p. Then the sixth “(F) occupational provided .” an item on the list is other diseases. . things prove Among employee can of five criteria. existence employee “[a] an is be- which tween the conditions under which the work is must show direct causal connection
performed dis- employee . . ease. .” That means must show that connection particular show, his natural incident of the “[t]hat case. He must the disease followed a
exposure employment. .” . . reason of the particular employee is not This directed ailment of this general characteristics a disease. (F) provide
If is construed characteristics which disease possess interesting disease, in order to be an it is to con- specifically sider whether the diseases listed as diseases (F) qualify sug- specifically I could under if had not been listed. gest employee to which asbestosis is disease of a character exposure employment. so, If have substantial outside asbestosis would not necessary qualify have the characteristics as an (F). I proper inquiry disease under But believe the is whether given employee exposed has employ- been to asbestosis outside his ment. An poisoning employee “may Consider arsenic. have had employment substantial outside” arsenic in general his so, If if poisoning already occupa- sense. had not been listed as an (F). is, tional qualify point disease would not proper under inquiry particular should be whether or not this had sub- stantial outside employment in this case.
I am led to this conclusion for the additional reason stat- provides ute for general elsewhere characteristics which must attach employer order to render an for compensation. occupa- liable An “listed,” tional only “occupational disease not must be it is an dis- “. ease” if it . . due to causes and conditions which are charac- trade, peculiar particular teristic occupation, process, or employment (ex- in which the employee exposed to such disease eluding public diseases of life to ex- general posed). (3). Furthermore, ...” liability there is only if, disease arose out of and in employ- the course of the “[s]uch ment which the employee employer, under such engaged contracted while the engaged, was so and has resulted a hazard characteristic of in excess of the hazards such attending employment general. ...” OCGA 34-9- *7 (b). apply These limitations to all including listed diseases sub- (F). section reaching
2. In the conclusion Workers’ Compensation the Act is not bar Ap to the tort actions court of the trial and Court Williams, peals separately dealt with the claim of and both of Newton 1971, whom employment Synalloy prior terminated their with the year of the amendment the disease statute. OCGA § (F). Samuels was the the employed after effective date of amendment. The courts ap below held that the amendment did not ply pre-1971 employees. clearly The rationale used was that so v. Synalloy is, set forth in Hall Corp., FSupp. That relationship employees the employers between and is one of contract. view, compensation Under this grafted the workers’ laws are onto the compensation contract. Whether there is coverage workers’ is deter by in mined the law effect the during employ term of the contract of ment. Laws enacted after the termination of the contract are not part of the approach contract. result of this the pre-1971 employees governed by compensation are ex workers’ law as it prior isted provision to the 1971 amendment. There was no at that (3) (F), time such now found in OCGA 34-9-280 and therefore no bar to a common I not law action. would follow this view. To do in legislature helpless provide so would render the harmful sub- for those who suffer delayed disability employment during after termi- before termi- until with stances provided employment. of Unless the
nation nation be afforded afterward. of none could employers, relationship as that rela- and I view the by tionship laws, as one of status is affected workers’ rather than contract. compen- in workmen’s used the term ‘contract’
“The courts have
speaking
they
of mar-
term when
have used that
sation cases much as
riage
agree
parties
marriage,
employment,
like in
In
‘contracts.’
relationship,
do the law dictates
but once
to enter
legal
marriage
rights
And,
in
within
liabilities.
them their
and
impairment
having nothing
contract, the
to with the
limitations
do
may
rights
change
liabilities,
time dur-
law
those
ing
terminated,
relationship
it has been
but
even after
sometimes
working
stopped
example,
the em-
as,
ployer
has
for
after the
injury.
Education,
v. Bd.
[Cits.]” McAllister
because of an
Kearny,
Super.
217,
212,
A2d
Town
79 N.J.
Supreme
approach
rejecting
North Carolina
contract
Co.,
P.
by exposure substance over to deleterious many apparent long period years. time, At a harm, often first there is no symp- gradually, damage time, Often but over accumulates. gradually appear finally disability in. When was the toms sets happen? of this did The resolution done? When the accident employer employee are sub- dilemma is statute. “Where the ject chapter, to this the disablement or death result- *8 ing from an treated as the occurrence disease shall be death, accident; or, in the of his case provided by dependents his shall be entitled to (a). chapter.” OCGA 34-9-281 pre-1971 employees the 1971 would hold the are bound post-1971 employee. rights
amendment as is the dies are The same and reme- They may proceed in tort unless the criteria afforded all. (3) (F) met, in which event the lies in compensation. I am authorized to state that Justice Clarke and Justice Smith join this dissent. February 27, Decided
Rehearing denied March Fulcher, Reed, Flagler, Obenshain, Harper, Hanks & Duncan D. Wheale, Reed, William C. for appellant.
Daniel Craig, appellees. J. PROPERTIES, ROLLESTON v. SEA ISLAND INC. al. et (327 489) SE2d Justice.
Bell,
appellant
action,
Rolleston
declaratory
filed this
seeking
and injunctive
alia,
relief and damages
grounds,
on the
inter
that the
appellees,
through
means,
the construction of seawalls and other
had
interfered with
to recreational
easements
well as ease-
ments of ingress
egress
parts
to certain
of Sea Island. He also
alleged that,
erosion, accretion,
due to
avulsion, he
was the owner
of the soft sand beach between his lots and the Atlantic Ocean. The
trial court held that
the latter issue
by jury,
was to be
decided
but
granted summary judgment
appellees
on the other issues. Rolleston
appeals, and we
developed
affirm. The
present
record
case con-
largely
sists
of the
and transcript
record
from the cases Goodyear
Bank,
(276
30)
v. Trust Co.
(1981),
Ga. 281
SE2d
v.
and Rolleston
State,
1. Relying
on Smith v.