BRIAN THIGPEN v. RAYMOND PRICKETT

SECOND DIVISION
DOYLE, P. J.,
DILLARD, P. J., and SENIOR JUDGE FULLER

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules

June 12, 2026

In the Court of Appeals of Georgia
A26A0276. THIGPEN et al. v. PRICKETT et al.

DOYLE, Presiding Judge.

Brian and Patricia Thigpen, individually and as surviving parents of their

deceased son Brian Thigpen, Jr. (“Brian”),1 appeal from the dismissal of their tort

claims against Raymond Prickett, Brian’s supervisor at a work site.2 The trial court

1
Patricia also appears as the administratrix of Brian’s estate.
2
The plaintiffs initially named other coworkers and employers, and the tort
claims against those defendants were also dismissed. On appeal, the Thigpens make
no argument regarding the dismissal as to those defendants. Accordingly, any
challenge to the dismissal of defendants other than Prickett is deemed abandoned. See,
e.g., Massey v. State Farm Fire and Cas. Co., 363 Ga. App. 588, 592–93 (871 SE2d 685)
(2022) (deeming certain claims to be abandoned on appeal with respect to
unchallenged portions of trial court order). See generally Court of Appeals Rule
25(d)(1) (“Any enumeration of error that is not supported in the brief by citation of
authority or argument may be deemed abandoned.”).
dismissed their claims on the ground that the Workers’ Compensation Act, OCGA

§ 34-9-1 et seq. (“the WCA”), is the exclusive remedy for workplace injuries.

Specifically, the trial court ruled that “no [d]efendant in the case, including Prickett,

committed a direct affirmative act that would nullify the protection of the exclusive

remedy afforded them by the [WCA].” The Thigpens contend that the trial court

erred (1) by determining as a matter of law that Prickett did not commit an affirmative

act that would authorize these tort claims outside of the scope of the WCA; and (2)

by improperly weighing the credibility of witnesses and considering Brian’s relative

negligence as factors in its determination. Discerning no reversible error, we affirm.

We review legal questions arising from the grant of a motion to dismiss de novo,

see DeKalb County Republican Party, Inc. v. Raffensperger, 376 Ga. App. 757, 759(1)

(921 SE2d 23) (2025), and we review a trial court’s factual determinations under the

“any evidence” rule, see Conrad v. Conrad, 278 Ga. 107, 109 (597 SE2d 369) (2004).

The record reflects that Brian was 16 years old when he was hired by Terra

Excavating, LLC (“Terra”). Terra was engaged as a subcontractor to perform grading

work at a construction site on a surface mining granite quarry owned by Vulcan

Construction Materials, LLC. Prickett was employed by Terra as a supervisor at the

2
site, and Brian worked under his supervision at the site along with another Terra

employee, Jonathan Byrd.

It is undisputed that Brian was new to operating heavy machinery. Three weeks

into Brian’s tenure at Terra, he showed up at the work site and, along with Byrd,

worked on tasks assigned by Prickett to perform grading activity by building up an

elevated pad of dirt approximately four feet higher than the surrounding grade.3 In the

morning, Brian operated a haul truck, which was loaded by Prickett with an excavator,

and Byrd operated a bulldozer to level the grade. It is undisputed that, at some point

in the middle of the day, Prickett instructed Byrd to operate a compactor on the newly

established pad, but Brian “wanted to,” so “[h]e took off running before [Byrd] got”

to the machine. Prickett then told Byrd to “go down there with him” and operate the

haul truck. Over the radio, Prickett told the men that he was sloping the pad but was

not finished, and that Brian should concentrate on compacting the middle of the pad,

thereby staying away from the edges which were unstable: “[H]e wasn’t supposed to

go ... further than the middle, that’s what we told him.”

3
The pad was where a rock crushing and screening plant would be installed.
3
On Brian’s first pass in the compactor, as he attempted to back the machine, it

slid off of the pad and rolled, killing Brian. The Thigpens filed this action against

Vulcan, Terra, and related individual defendants. Several defendants moved to

dismiss based on the exclusive remedy provision in the WCA, and the trial court

reserved ruling on the merits, allowing limited discovery to determine whether the

action was permitted by the “affirmative act” exception to the WCA’s exclusivity

bar.4 Discovery ensued, and the Thigpens later named Prickett as a defendant; he

joined in the earlier motions to dismiss.

Following a second hearing, the trial court entered an order granting the

motions to dismiss as to each of the defendants, including Prickett. In its order, the

trial court found that the undisputed evidence shows that Prickett did not commit an

“affirmative act” directed at Brian that would have caused or increased the risk of

injury to him. The Thigpens now appeal.

4
The trial court relied on a statement in Pardue v. Ruiz, 263 Ga. 146, 148 (429
SE2d 912) (1993), that WCA “immunity would not ... extend to [a] supervisor when
he commits an affirmative act causing or increasing the risk of injury to another
employee.” See also Rogers v. HHRM Self-Perform, LLC, 365 Ga. App. 862, 870–71(2)
(880 SE2d 351) (2022).
4
1. The Thigpens first argue that the trial court erred by concluding that no

evidence shows that Prickett committed an affirmative act that would overcome the

WCA’s exclusivity bar to work-related tort claims. This argument is without merit.

Under OCGA § 34-9-11(a), “[t]he rights and the remedies granted to an

employee by [the WCA] shall exclude and be in place of all other rights and remedies

of such employee, his or her personal representative, [and] parents, ... and all other

civil liabilities whatsoever at common law or otherwise, on account of such injury, loss

of service, or death[.]” Thus, “[a]s a general principle, the WCA is the exclusive

remedy for a worker or next of kin who sustains an ‘injury’ arising out of and in the

course of employment.” Simmons, 373 Ga. App. at 70(1) (citing OCGA § 34-9-11(a)).

This is true whether the injured employee attempts to sue his employer or a fellow

employee who caused the injury.5

5
See Odom v. Franklin, 368 Ga. App. 246, 247 (889 SE2d 405) (2023)
(“[W]hen an injury falls within the purview of the Act, the injured employee is barred
from recovering in tort against not only his employer, but also against an employee of
the same employer.”). See also Smith v. Ellis, 291 Ga. 566, 571(2)(b) (731 SE2d 731)
(2012) (“Put simply, an injured employee may not ... recover compensation under the
Act ... and then turn around and sue the employer or ‘an employee of the same
employer[.]’”) (citing Thorn v. Phillips, 164 Ga. App. 47, 48 (296 SE2d 251) (1982)
(“It is now established beyond peradventure that Workers’ Compensation provides
the exclusive remedy for the plaintiff ... for injuries caused by acts of a fellow
employee, arising out of and in the course of plaintiff’s employment.”); Williams v.
5
The trial court ruled in part, and it is undisputed, that Brian’s death arose out

of and in the course of his and Prickett’s employment with Terra. Thus, this is an

ordinary suit against a co-employee of the same employer, which is barred by the

WCA’s exclusive remedy provision applicable to injuries arising out of and in the

course of employment. See generally Odom, 368 Ga. App. at 247.

Nevertheless, the Thigpens rely on a statement first made in Pardue:

[W]e hold that where negligence is based on a general non-delegable duty
of the employer (such as supervision and safety), the supervisory
employee shares in the immunity of the employer. This immunity would
not, however, extend to the supervisor when he commits an affirmative
act causing or increasing the risk of injury to another employee.

263 Ga. at 148. This passage must not be read in isolation. The Supreme Court arrived

at its holding in Pardue when evaluating a specific claim inapposite here.

Thomas, 187 Ga. App. 527, 529 (370 SE2d 773) (1988) (explaining that an injured
employee could not recover from his own uninsured motorist policy for an injury
caused by a co-employee because the injured employee “is barred by the exclusive
rights and remedies provision of OCGA § 34-9-11 from obtaining judgment either
against his employer or the co-employee who injured him”); Fountain v. Shoney’s Big
Boy, Inc., 168 Ga. App. 489, 489 (309 SE2d 671) (1983) (OCGA § 34-9-11 “(as
amended by Ga. L. 1974, pp. 1143, 1144; 1980, pp. 1145, 1146) now specifically bars
plaintiff (as an employee) from her action for damages for tort against her employer
and fellow employee making her remedy exclusively a workers’ compensation matter
under the act”).
6
In [Pardue], the Supreme Court of Georgia addressed whether a former
general rule6 that an injured employee could not hold a managerial
employee of his direct employer liable in tort should be applied in a
different context: Should managerial employees be entitled to immunity
from suit when their direct employer is the statutory employer of the
injured employee? ... In Pardue, the Supreme Court of Georgia looked at
this former rule and concluded that it was “persuasive in determining if
the supervising [or managerial] employee should be treated as the
statutory employer.” Accordingly, it concluded in the case before it that
the vice president and safety officer of a general contractor should be
considered the statutory employer of the injured employees of a
subcontractor and share in his employer’s immunity from suit. It also
stated: ‘This immunity would not, however, extend to the supervisor when he
commits an affirmative act causing or increasing the risk of injury to another
employee.’

Sprowson v. Villalobos, 355 Ga. App. 279, 284–85 (841 SE2d 453) (2020) (cleaned up;

emphasis added) (citing Pardue, 263 Ga. at 147–48 & n.1.).

It is this last statement that the Thigpens rely upon here and that the trial court

analyzed. But Pardue’s analysis was not of co-employees. Instead, it examined whether

6
“[T]he law prior to the 1974 amendment to [the WCA held] that ‘an
employee, after having collected Workmen’s Compensation benefits from the
employer, can proceed against a fellow employee in a common law tort action against
the offending employee as an individual.’” Cunningham v. Heard, 134 Ga. App. 276,
277 (214 SE2d 190) (1975) (emphasis added and omitted).
7
“the vice president and safety officer of a general contractor should be considered the

statutory employer of the injured employees of a subcontractor and share in his

employer’s immunity from suit,” and it derived from a context when the law held that

fellow employees could be liable to each other despite the WCA. Sprowson, 355 Ga.

App. at 285. See Pardue, 263 Ga. at 147. For this reason, it mattered whether the

defendant was a fellow employee or an executive, with the latter being deemed the

alter ego of the corporation and therefore immune when acting in a general managerial

capacity. See generally Cunningham, 134 Ga. App. at 277 (applying former law

allowing actions against the offending fellow employee as an individual and holding

a defendant executive immune under the WCA as an alter ego of the corporation and

not a fellow employee). That is not the present legal or factual context, and “Pardue

is therefore distinguishable because it addressed the sole path for the vice president

of a general contractor to be found immune from tort liability” in a claim by a

subcontractor’s employee. Sprowson, 355 Ga. App. at 285.

Here, it is undisputed that Terra employed both Prickett and Brian as co-

employees, and therefore, Pardue’s language “is not implicated here.”7 Sprowson, 355

7
See, e.g., Rogers, 365 Ga. App. at 870–71(2) (relying on Pardue and analyzing
the reach of WCA immunity with respect to safety officers employed by a member of
8
Ga. App. at 284. Thus, Prickett’s “immunity is not dependent upon whether he

should be considered the alter ego of a statutory employer.” Sprowson, 355 Ga. App.

at 285. Rather, he is immune as Brian’s co-employee. See OCGA § 34-9-11(a) (“The

rights and the remedies granted to an employee by this chapter shall exclude and be

in place of all other rights and remedies of such employee[.] ... No employee shall be

deprived of any right to bring an action against any third-party tortfeasor, other than

an employee of the same employer[.]”) Cf. Sprowson, 355 Ga. App. at 285.8

a joint venture).
8
We note that the relied upon language in Pardue (the last sentence of the
opinion) is potentially dicta, i.e., a general statement not necessary to determine the
issue before the court, and it has no authority as its source. See generally Zepp v.
Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (noting that the Supreme Court is
“not bound to follow ... dicta in a prior case [where] the point now at issue was not
fully debated”). Further, the language has been called into question as irreconcilable
with the current language of the WCA. See Rogers, 365 Ga. App. at 870(2). Given this,
clarity on the language from the Supreme Court of Georgia would benefit the bench
and bar.
And even if the language in Pardue applied, the record shows no affirmative act
on the part of Prickett that would defeat the WCA’s exclusive remedy bar. Prickett
did not affirmatively instruct Brian to operate the compactor, and upon learning that
he was doing so, Prickett instructed him to stay in the middle of the elevated pad and
away from the edges. Further, Prickett was not in the immediate area where Brian
operated the compactor. Under these circumstances, the trial court correctly found
that Prickett had not taken any affirmative acts that would allow Thigpen to sue his
co-employee based on the language in Pardue. Compare Padgett v. CH2M Hill
Southeast, Inc., 866 FSupp 560, 562 (MD Ga. 1994) (finding evidence of an affirmative
9
2. The Thigpens next argue that the trial court erred by construing the factual

record against them and essentially deciding the merits of the case without full

discovery. Their appellate argument acknowledges but ultimately overlooks the

import of a threshold determination regarding WCA immunity. The controlling facts

of the record are not in dispute — Brian’s death arose out of and in the course of his

employment — and it was not subject to an exception under Pardue. 263 Ga. at

147–48. See Sprowson, 355 Ga. App. at 285. Having determined that the action is

barred by the exclusive remedy afforded by the WCA, the trial court correctly

dismissed the action.

Judgment affirmed. Dillard, P. J., and Senior Judge C. Andrew Fuller concur.

act when a safety officer erroneously told a freelance welder that a valve in an enclosed
chamber was “ready for welding” despite the presence of a high concentration of
oxygen that subsequently ignited and burned the welder).
10