Chaparral Boats, Inc. v. Heath

BARNES, Judge,

concurring specially.

While I agree with the result reached by the majority in this case and in Division 2,1 do not agree with all that is said. In this case, the superior court misapplied the holding in Johnson v. Publix Supermarkets, 256 Ga. App. 540 (568 SE2d 827) (2002), which is physical precedent only, because a majority of judges did not fully concur with all that is said.2 A Court of Appeals opinion in which less than a majority of the Court concurs fully merely decides the issues in that case and is not binding precedent. State v. Smith, 242 Ga. App. 295, 296 (529 SE2d 423) (2000); Smith v. Morris, Manning & Martin, 254 Ga. App. 355, 357 (1) (562 SE2d 725) (2002). It may he cited as *350persuasive authority, just as foreign case law or learned treatises may be persuasive, but it is not binding law for any other case.

Further, nothing in Johnson does away with the requirement that a claimant in a workers’ compensation case must show that her injury arose out of her employment. The point in Johnson is simply that “[p]hysical contact with some object is not necessary in order for the employee to sustain an accident within the meaning of the Workers’ Compensation Law,” (punctuation omitted) id. at 541, quoting Orkin Exterminating Co. v. Wright, 92 Ga. App. 224, 225 (88 SE2d 205) (1955), a point that had become obscured in our case law. One such obscuring opinion was Prudential Bank v. Moore, 219 Ga. App. 847 (467 SE2d 7) (1996), in which a three-judge panel held that, because the claimant did not strike an object when she fell, but only hit the baseboard, she was not entitled to workers’ compensation benefits, although apparently she would have been covered had she hit her keyboard or a desk or a chair. This is clearly an unreasonable method of analyzing whether a claimant is entitled to benefits, and one which earlier opinions had already disapproved.

The “peculiar risk” and “positional risk” doctrines arose when the courts addressed whether a claimant was covered under workers’ compensation for an injury resulting from an act of God. National Fire Ins. Co. v. Edwards, 152 Ga. App. 566, 567 (1) (263 SE2d 455) (1979). In National Fire, the claimant was injured when a tornado toppled a wall he was standing beside. Under the “peculiar risk” doctrine, he would not have been compensated, because the danger— the tornado — was not peculiar to his work. In the unanimous whole court opinion in National Fire, we held that the better analysis was to determine whether the claimant’s work “brought him within range of the danger by requiring his presence in the locale when the peril struck, even though any other person present would have also been injured irrespective of his employment.” Id. at 567.

This court in Johnson merely attempted to clarify this analysis; it did not change the law. The plurality opinion in Johnson does not stand for the proposition that one who suffers an idiopathic fall is automatically covered regardless of whether the fall arose out of her employment. Even the dissent in Johnson did not disagree with the legal analysis; instead, it disagreed with the application of that analysis to the facts of the case.

Therefore this court should not now disapprove of the physical precedent plurality opinion in Johnson, and consequently I concur only in Division 2 and in the result.

I am authorized to state that Judge Miller and Judge Phipps join in this special concurrence.

*351Decided August 3, 2004 Reconsideration denied August 31, 2004 Clyatt, Clyatt & Golden, Melissa M. Clyatt, Richard L. Perryman III, for appellants. Berrien L. Sutton, Bryant H. Bower, Jr., for appellee.

Judgment as Precedent. A judgment which is fully concurred in by all judges of the Division is a binding precedent; if there is a special concurrence without a statement of agreement with all that is said in the opinion or a concurrence in the judgment only, the opinion is a physical precedent only. If the appeal is decided by a seven or twelve judge Court, a full concurrence by a majority of judges is a binding precedent, but if the judgment is made only by special concurrences without a statement of agreement with all that is said in the opinion or by concurrence in the judgment only, there being general concurrence by less than a majority of the Judges, it is a physical precedent only.

Court of Appeals Rule 33 (a).