Mother can pursue civil suit for fatal shooting of son: Georgia appeals court

The Georgia Court of Appeals revived a mother’s civil suit for the fatal shooting of her son, who was pursuing a job as a security guard at an apartment complex.

As documented in Pierre v. Micro-Ja/X LLC, published on Sept. 17, A&J Security Services provided security services at the Park 35 Apartments in Decatur. In April 2021, Shamel Kelly “shadowed” a security guard with A&J for the purpose of being hired. A second security guard took Mr. Kelly’s handgun and accidentally shot him. He died of his wounds.

Mr. Kelly’s mother filed a workers compensation claim against A&J and other defendants, asserting that she was his dependent. She also filed a wrongful death and tort action against them.

In April 2023, the parties to the workers compensation claim agreed to a settlement of $50,000.

Under the terms, the parties stipulated that Mr. Kelly “was not an employee [of]” and “did not work for” A&J, and also stated that the settlement was “entered into solely under the provisions of the Georgia Workers’ Compensation Act and is intended to constitute a complete and final disposition of all claims on account of the accident or injuries which are the basis of this workers compensation claim.”

The mother then executed a “general workers compensation release,” stating that she was waiving her right to pursue a remedy “with regard only to the workers compensation claim” against the defendants.

The release also specified that the mother did “not agree to waive any claim or action regarding [Kelly’s] wrongful death or tortious injury or any other potential claim not related to the workers compensation claim.”

In May 2023, the Workers’ Compensation Board approved the settlement. In June 2023, the defendants filed a motion to dismiss the wrongful death and tort action based on workers compensation exclusivity.

A trial judge granted the motion as to the mother’s “individual” tort claims.

The Georgia Court of Appeals said that in cases such as this, with “contemporaneous agreements between the same parties with relation to the same subject matter, each writing may be used to ascertain the true intention of parties and may authorize a determination that, when construed together, they constitute as a whole, but one contract.”

The court noted that the parties specifically agreed in writing to preserve “any claim or action regarding (Mr. Kelly’s) wrongful death or tortious injury or any other potential claim not related to the workers’ compensation claim.” A&J also admitted that the mother’s release demonstrated the parties’ intent to preserve her right to pursue wrongful death and other tort claims, distinct from her workers compensation claim.

“The fact that A&J has now taken the opposite position does not preclude us from crediting this previous admission for purposes of summary judgment,” the court said.

The court said the judge erred in granting the motion to dismiss, which was in effect a grant of summary judgment, because evidence shows that the parties intended to preserve the mother’s wrongful death and tort remedies.

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