Baldwin v. Roberts

Johnson, Judge.

Joseph Roberts owns a McDonald’s restaurant and employed Shurice Baldwin as a hostess. One afternoon, the restaurant manager told Roberts that Baldwin was yelling at a customer. Roberts confronted Baldwin and told her to clock out and leave the restaurant. The argument escalated and Roberts ultimately called the police to have Baldwin removed from the premises. Three police officers responded to the call and escorted Baldwin from the restaurant. Baldwin claims that as the officers were removing her from the premises, Roberts hit her face with his hand. Roberts denies this claim. Baldwin did not return to work and, several days after the incident, turned in her work uniform and asked Roberts for a separation notice. Roberts gave her a notice which stated, “Failed to report for work for three consecutive days. No call. No show. Further work was available.” Baldwin submitted the separation notice to the labor department when she applied for unemployment benefits. The labor department denied her application; Baldwin never appealed that decision. She then filed the instant complaint, claiming that Roberts committed battery when he hit her, that the statements he made in the separation notice are fraudulent and that she is entitled to punitive damages. The trial court granted summary judgment in favor of Roberts on all claims. Baldwin appeals.

1. We first address the issue of whether Baldwin’s battery claim is barred by the exclusive remedy provision of the Workers’ Compensation Act. “In cases where an employee is injured in a physical altercation with another person occurring on the job but stemming from personal animosity, [her] injuries will nevertheless be considered compensable under the Workers’ Compensation Act if it is shown that the animosity arose from reasons related to the employee’s performance of [her] work-related duties. Conversely, if the animosity giving rise to the assault stemmed from reasons not related to the injured employee’s performance of [her] work, then [her] injuries will not be considered compensable under the Act.” (Citations, punctuation and emphasis omitted.) Western Waterproofing Co. v. Rogers, 204 Ga. App. 779, 780 (1) (420 SE2d 606) (1992). Baldwin argues that there is a genuine issue of fact as to whether Roberts’ animosity toward her was related to the performance of her work. The only evidence she relies on in support of this argument is that she yelled, among other things, derogatory remarks at Roberts as the police removed her from the restaurant. Contrary to Baldwin’s argument, this evidence does not create a genuine issue of material fact. The undisputed evidence shows that prior to this incident, there had been no animosity of any sort between Roberts and Baldwin. Roberts gave uncontroverted tes*547timony at his deposition that he had Baldwin removed from the store because she was creating a disturbance which caused all activity in the restaurant to come to a halt. The mere fact that part of the disturbance was caused by personal remarks directed toward Roberts does not show that the animosity between the parties was unrelated to Baldwin’s work performance. The record plainly shows that any animosity between Roberts and Baldwin arose from reasons related solely to her performance at work; the animosity arose from the disturbance she was causing while on duty as a hostess in the restaurant. See Fountain v. Shoney’s Big Boy, 168 Ga. App. 489, 490 (309 SE2d 671) (1983). Because the animosity arose from reasons related to Baldwin’s performance of her work, the injuries she received from the alleged battery are compensable under the Workers’ Compensation Act. Compare Hardee’s Food Systems v. Evans, 197 Ga. App. 5 (397 SE2d 474) (1990). Baldwin’s tort claim for battery is therefore barred by the exclusive remedy provision of the Act. OCGA § 34-9-11.

Baldwin’s further contention, that the battery is not covered by the Act because her employment had already been terminated at the time Roberts hit her, is also without merit. Assuming, without deciding, that Roberts did in fact terminate Baldwin before allegedly hitting her, since his aggressive acts “were part of the res gestae of the [alleged] discharging of [Baldwin], the injuries which resulted from those actions arose out of and in the course of employment.” Woodward v. St. Joseph’s Hosp. of Atlanta, 160 Ga. App. 676, 677 (288 SE2d 10) (1981). The trial court properly granted summary judgment to Roberts on Baldwin’s battery claim.

2. Baldwin complains that the court erred in granting summary judgment to Roberts on her fraud claim. “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. In deciding whether the evidence presented is sufficient to raise a triable issue as to each element, the court must resolve all disputes of fact and indulge all reasonable inferences therefrom in favor of the nonmoving party.” (Citations omitted.) Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). Even resolving all disputed facts in favor of Baldwin, there is no evidence of a false representation by Roberts. Baldwin’s claim that the statements Roberts made in the separation notice are fraudulent is premised on her assertion that she thought her employment was terminated when Roberts told her to clock out and leave the premises and then called the police. Baldwin’s belief that she had been fired does not create a genuine issue as to whether she was in fact fired. On the contrary, the undisputed evidence in the rec*548ord shows that Roberts did not terminate Baldwin’s employment. Roberts testified that he did not fire her. Baldwin herself testified at her deposition that Roberts never told her she was fired and, when she asked for the separation notice, he specifically told her, “I didn’t say you was fired.” The only evidence Roberts can point to in support of her assertion that she was terminated is her own testimony that the night following the incident she called the restaurant and spoke to another employee who told her that Roberts’ wife said that Baldwin was fired. This testimony is inadmissible hearsay which may not be used on a motion for summary judgment to create a genuine issue of material fact. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990). Because there is no competent evidence showing that the statements made by Roberts in the separation notice are false, the trial court did not err in granting summary judgment against Baldwin on her fraud claim.

3. Because of our holdings in Divisions 1 and 2 of this opinion, Baldwin’s claim that the trial court’s judgment should be reversed because she is entitled to punitive damages is without merit.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews and Smith, JJ., concur. Blackburn, J., concurs in part and dissents in part.