LOKIN CROOK v. SIX FLAGS OVER GEORGIA II, L.P.

THIRD DIVISION
DILLARD, P. J.,
GOBEIL and PIPKIN, JJ.

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 15, 2026

In the Court of Appeals of Georgia
A26A0470. CROOK et al. v. SIX FLAGS OVER GEORGIA II, L.P.
et al.

GOBEIL, Judge.
Lokin Crook, individually and as surviving spouse of Andrea Crook (“Crook”),
and in his capacity as administrator of the estate of Andrea Crook (“Plaintiff”),
appeals from the trial court’s dismissal of his negligence/wrongful death action against
several defendants for lack of subject matter jurisdiction.1 On appeal, Plaintiff
contends in pertinent part that the court erred in dismissing the suit on the ground
that Plaintiff’s claims are barred by the exclusive remedy provision of the Georgia
Workers’ Compensation Act, OCGA § 34–9–11(a) (the “Act” or “WCA”), and in
treating the exclusivity bar as a question of subject matter jurisdiction, thereby putting

1
We have circulated this decision amongst all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required numbers of judges, however, voted in favor of
considering this case en banc.
the burden on Plaintiff to disprove the bar.2 For the reasons that follow, we reverse the
trial court’s orders and remand for further proceedings not inconsistent with this
opinion.3
A motion brought under OCGA § 9-11-12(b)(1) “asserts the defense of lack of
jurisdiction over the subject matter.” Douglas County v. Hamilton State Bank, 340 Ga.
App. 801, 801 (798 SE2d 509) (2017) (punctuation omitted). When a defendant brings
an OCGA § 9-11-12(b)(1) motion, the plaintiff bears the burden of establishing that
jurisdiction exists. Id. A motion to dismiss for lack of subject-matter jurisdiction can
“allege either a facial challenge, in which the court accepts as true the allegations on
the face of the complaint or a factual challenge, which requires consideration of
evidence beyond the face of the complaint.” Id. (punctuation omitted). We review de
novo a trial court’s grant of a motion to dismiss due to lack of subject-matter
jurisdiction. See id. at 801–02. We also “construe the pleadings in the light most

2
In Simmons v. Solo Cup Operating Corp., the plaintiff argued that the trial court
erred in concluding that the WCA’s exclusivity bar was a question of subject-matter
jurisdiction, and also erred in holding that the plaintiff bore the burden of proving the
WCA did not apply. 373 Ga. App. 69, 70-72(1)-(2) (907 SE2d 377) (2024). We
concluded that the issue was not properly before us because it was not raised in the
trial court. Id. at 71-72 (1)-(2). As a result, this Court opted to “leave for another day
the resolution of this interesting — but unpreserved — claim of error.” Id. at 71(1).
That issue is now before us.
3
Oral argument was held on April 16, 2026, and is archived on the Court’s
website. See Court of Appeals of Georgia, Oral Argument, Case No. A26A0470 (Apr.
16, 2026), available at https://vimeo.com/1185509224.
2
favorable to the nonmoving party with any doubts resolved in that party’s favor.” Id.
at 802 (punctuation omitted).
So viewed, the record shows that on October 1, 2023, Crook was working as a
seasonal “scare actor” at the annual Fright Fest at Six Flags Over Georgia theme park
(the “Park”). On October 1, 2023, Crook and other seasonal actors were loaded into
the back of a cargo van at the Park. Asia Hendricks, who also worked at the Park, was
the driver of the van. The van’s door remained open throughout the ride. As
Hendricks drove up a hill and around a curve, Crook fell out of the open van door and
hit her head on the ground. Crook died as a result of her injuries.
In January 2024, Plaintiff filed a negligence/wrongful death action against Six
Flags Over Georgia II, L.P., Six Flags over Georgia, LLC, Six Flags Entertainment
Corporation, SFOG II, Inc., Six Flag Theme Parks, Inc., (collectively, the “Six Flags
Defendants”), as well as Hendricks. Plaintiff alleged that the Six Flags Defendants
“either independently or jointly controlled, oversaw, managed, directed, inspected,
operated, and maintained the Six Flags theme park, private access roads, and
equipment thereon, including the subject cargo van, its operation, maintenance and
the method of its operation and use at the property.” According to Plaintiff, Crook
was an invitee of the theme park on the incident date. He further contended that the
Six Flags Defendants had been negligent in various ways including by failing to:
maintain the van Crook was riding in on the day of her death, which did not have
passenger seats, seat belts, or other restraints, and lacked safety features such as a
functioning door; properly train and supervise Hendricks in operating the van; and
provide safe transportation to scare actors, including Crook. As to Hendricks, the

3
complaint alleged that she operated the vehicle in a reckless manner, including driving
at an excessive speed under the circumstances, and she “was acting at the direction
and under the control of” and with permission of the Six Flags Defendants.
The Six Flag Defendants filed an answer and a motion to dismiss pursuant to
OCGA § 9-11-12(b)(1), arguing in relevant part that the exclusive remedy provision
of the Act deprived the trial court of subject matter jurisdiction over Plaintiff’s tort
claims. Hendricks filed a separate answer and motion to dismiss,4 also challenging the
court’s subject matter jurisdiction.5 After oral argument and limited discovery, the
Gwinnett County State Court entered two separate orders granting the motions to
dismiss filed by the Six Flags Defendants and Hendricks. More specifically, the court
concluded that it lacked subject matter jurisdiction over Plaintiff’s claims, which were
barred by the exclusive remedy provided by the Act. Plaintiff then filed the instant
appeal.
Plaintiff argues in pertinent part that the trial court erred in deciding whether
the exclusive remedy provision of the Act applies as a question of subject matter
jurisdiction and therefore placing the burden on the Plaintiff to disprove the
exclusivity bar.
As 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. See

4
In her motion to dismiss, Hendricks incorporated by reference the arguments
contained in the Six Flags Defendants’ motion.
5
Hendricks also filed a supplemental motion to dismiss for failure to state a
claim, which the trial court denied.
4
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, his or her personal representative, parents, dependents, or next of kin, and
all other civil liabilities whatsoever at common law or otherwise, on account of such
injury, loss of service, or death[.]”); 34-9-1(4) (defining an injury or personal injury
for purposes of the WCA as an “injury by accident arising out of and in the course of
employment”); Smith v. Camarena, 352 Ga. App. 797, 798(2) (835 SE2d 712) (2019)
(explaining that plaintiffs may not pursue a tort action when a worker’s death is
compensable under the WCA). “Generally, an injury is compensable [under the Act]
only if it arises out of and in the course of the employment. The test presents two
independent and distinct criteria, and an injury is not compensable unless it satisfies
both.” Mayor & Aldermen of Savannah v. Stevens, 278 Ga. 166, 166(1) (598 SE2d 456)
(2004) (citations omitted); Kil v. Legend Brothers, LLC, 350 Ga. App. 680, 681 (830
SE2d 245) (2019) (same).
In its orders addressing the Six Flags Defendants’ and Hendricks’s motions to
dismiss, the state court stated: “For the reasons stated, and based upon the authorities
relied upon, by [the defendants] in support of their motion[s], the [c]ourt finds that
the [c]ourt lacks subject matter jurisdiction over Plaintiff’s claims which are barred
by the exclusive remedy provided by [the Act].” In its motion to dismiss, the Six Flags
Defendants primarily relied on two cases to argue that the exclusive remedy provision
of the Act is a question of subject matter jurisdiction, thereby placing the burden on
Plaintiff to disprove the exclusivity bar — Kellogg Co. v. Pinkston, 253 Ga. App. 190

5
(558 SE2d 423) (2001), and Savannah Hospitality. Servs., LLC v. Scriven, 350 Ga.
App. 195 (828 SE2d 423) (2019).
In Kellogg, a husband and wife filed suit against the wife’s employer seeking
damages for injuries resulting from the wife’s exposure to asbestos in the workplace,
and derivatively for the husband’s loss of consortium. 253 Ga. App. at 190. The
husband and wife obtained a default judgment due to the employer’s failure to file an
answer. Id. The trial court awarded the husband and wife compensatory and punitive
damages totaling $4.4 million. Id. The trial court denied the employer’s motion to set
aside default judgment and to open default. Id. On appeal, this Court ruled that the
lower court erred in denying the employer’s motion to set aside judgment and refusing
to dismiss the complaint for lack of subject matter jurisdiction, as the complaint
pleaded a cause of action exclusively within the Act. Id. at 191–92(1). As relevant here,
this Court stated: “The rights and remedies of an employee against his or her
employer for a work-related injury under the [WCA] foreclose all other remedies at
common law or otherwise for such injury, lost service, or death.” Id. at 191(1). This
Court noted that the plaintiffs had failed to assert any of the exceptions to the
exclusive remedy provision of the WCA, which include:
An employee may maintain a cause of action outside the [WCA] in three
circumstances: (1) when the injury is a disease not naturally growing out
of injuries arising out of and in the course of employment; (2) the injury
is caused by the willful act of a third person directed against such
employee for reasons personal to him; or (3) the injury results from
willful misconduct on the part of the employer.

6
Id. at 191(1) n.5. This Court therefore concluded that the trial court was under a duty
to dismiss the complaint for lack of subject matter jurisdiction. Id. at 191–92(1).
In Savannah Hospitality Servs., an employee was injured in a car accident while
driving a work vehicle. 350 Ga. App. at 195–96. On appeal, the employer argued that
the trial court erred in denying its motion to dismiss because the plaintiff’s claims
were barred by the Act’s exclusivity provision. Id. at 197. This Court agreed and
reversed. Id. at 199–200. Citing to Kellogg, the Court explained “the application of the
exclusivity bar is akin to an issue of the trial court’s subject matter jurisdiction.” Id.
at 199 n.4.
Although not explicitly mentioned in the defendants’ motions to dismiss,
another relevant case is T & R S. Sanitation v. Lowe, 365 Ga. App. 220 (878 SE2d 77)
(2022). In that case, the plaintiff was a passenger on the back of a garbage truck and
fell off while the driver navigated a curve at high speed. Id. at 220. This Court
remanded the case for the trial court to determine in the first instance whether the
plaintiff’s claims fell within the scope of the WCA. Id. at 221(1). Again, citing to
Kellogg, this Court noted that if the trial court found that the claims were within the
scope of the Act, then the court would lack subject matter jurisdiction to hear that
matter. Id. at 221(1) & n. 3-4. This Court further explained that although the employer
did not raise this issue in the trial court, “the court’s lack of subject-matter
jurisdiction cannot be waived and may be raised at any time either in the trial court,
in a collateral attack on a judgment, or in an appeal.” Id. at 221(1) (punctuation
omitted).

7
In the instant appeal, Plaintiff counters that the cases cited by the defendants
in their motions to dismiss, and in turn relied upon by the state court, are in conflict
with other cases that treat the exclusivity bar of the Act as non-jurisdictional. In
Mullinax v. Pilgrim’s Pride Corp., in reference to the exclusivity bar of the Act, this
Court explicitly stated that “this tort immunity is an affirmative defense.” 354 Ga.
App. 186, 189(1)(a) (840 SE2d 666) (2020) (citing Zaldivar v. Prickett, 297 Ga. 589,
604(2) (774 SE2d 688) (2015)). As an affirmative defense, the burden falls on the
party asserting it — the employer — to establish the elements that trigger the
exclusivity provision, and the defense can be waived. See Johnson v. Hensel Phelps
Constr. Co., 250 Ga. 83, 84-85 (295 SE2d 841) (1982) (because there was no indication
in the record that the employer raised its statutory employer defense at trial, the
employer could not raise the issue for the first time on appeal from a denial of its
motion for directed verdict); Utz v. Powell, 160 Ga. App. 888, 889–90(1) (288 SE2d
601) (1982) (where issue as to whether negligence action could be maintained against
fellow employee or was barred by WCA was raised defensively in tort action, trial
court did not err in submitting that issue to the jury where plaintiff did not move for
summary judgment before trial on issue of fellow-employee defense).
“Subject matter jurisdiction is simply a power that is conferred by law upon a
class of cases that authorizes a court within such class to grant a particular form of
relief that might be sought by, or accorded to, a party before it.” Wallace v. Meyer, 260
Ga. 253, 255(5)(b) (394 SE2d 350) (1990). In Georgia, “[t]he superior courts shall
have jurisdiction in all cases, except as otherwise provided in [the Georgia]
Constitution.” Ga. Const. Art. VI, Sec. IV, Par. I. And state courts in Georgia have

8
limited county-level jurisdiction to hear, among other things, misdemeanor criminal
violations and general civil actions. OCGA § 15-7-4(a). As noted above, the Act
provides benefits to employees who are injured in accidents “arising out of and in the
course of” their employment. Doss v. Food Lion, 267 Ga. 312, 312(1) (477 SE2d 577)
(1996). And when the WCA applies, it provides an employee’s exclusive remedy
against his employer, as well as the employer’s workers’ compensation carrier. Id.
(employer); United States Fire Ins. Co. v. Day, 136 Ga. App. 359, 363–64 (221 SE2d
467) (1975) (insurance carrier). If a plaintiff’s claims fall within the scope of the Act,
the State Board of Workers’ Compensation has exclusive jurisdiction over claims
under the Act. Under these circumstances, trial courts “[do] not have subject matter
jurisdiction to order the payment of workers’ compensation benefits.” Royal Indemnity
Co. v. Ga. Insurers Insolvency Pool, 284 Ga. App. 787, 789 (644 SE2d 279) (2007).
However, this does not mean that trial courts lack subject matter jurisdiction to
consider whether the exclusivity bar applies in an employee’s tort action. Put another
way, whether an employer is entitled to tort immunity does not deprive the state court
of its jurisdiction over the subject matter, which in the instant case is a wrongful death
lawsuit.6 See Treaster v. Betts, 324 SW3d 489–90 (Mo. 2010) (“To the extent that
some cases have held that a court has no jurisdiction to determine a matter over which
it has subject matter and personal jurisdiction, those cases have confused the concept
of a [trial court’s] jurisdiction — a matter determined under [Georgia’s] constitution

6
Importantly, not every cause of action stemming from an incident in a
workplace is covered under the Act.
9
— with the separate issue of the [trial court’s] statutory or common law authority to
grant relief in a particular case.” (citation modified)).
And contrary to the statements made in Kellogg, Savannah Hospitality Servs.,
and T & R S. Sanitation, our precedent consists of countless cases that treat the
exclusivity bar as a statutory affirmative defense, rather than a question of jurisdiction.
See, e.g., Smith v. Ellis, 291 Ga. 566, 578(3)(e) (731 SE2d 731) (2012) (reversing grant
of summary judgment to defendant employer on the ground that the Act’s exclusive
remedy provision barred tort action, where genuine issues of material fact remained
as to whether the co-worker was acting in the course of his employment when he
injured the plaintiff); Lindsey v. Winn Dixie Stores, 186 Ga. App. 867, 868(1) (368
SE2d 813) (1988) (reversing grant of summary judgment where evidence did not
establish as a matter of law the existence of any causal relationship between the
plaintiff’s performance of his duties at the supermarket and the incident which gave
rise to this action; there was evidence to show that the perpetrator attacked the
plaintiff for reasons which were purely personal, outside the scope of the Act);
Dawson v. Wal-Mart Stores, 324 Ga. App. 604, 609(2) (751 SE2d 426) (2013)
(affirming trial court’s grant of summary judgment and dismissal of plaintiff-
employee’s personal injury suit where attack arose out of employment when victim
and attacker were unknown to each other and job required employee to walk through
a public parking lot during the dark, early morning hours); Estes v. G&W Carriers,
LLC, 354 Ga. App. 156, 157–59(2) (840 SE2d 486) (2020) (affirming grant of
summary judgment to employer where there was no question of fact that plaintiff was
an employee, rather than an independent contractor, and thus her personal injury

10
action against the company was barred by the exclusive remedy provision of the Act).
See also Knight v. Gonzalez, 181 Ga. App. 468, 469 (352 SE2d 646) (1987) (“The issue
of whether an injury arises out of and in the course of employment is a mixed question
of fact and law. When the issue of compensability under the workers’ compensation
law as a bar to recovery arises defensively in a tort action, the normal procedure is for
the jury to find facts and then to apply to those facts the law as given by the trial court
in its instructions.” (citing Utz, 160 Ga. App. at 889; citation modified)).
Notably, none of the authorities cited by the Six Flags Defendants and
Hendricks, and relied upon by the state court in granting their motions to dismiss
based on lack of subject matter jurisdiction, contain any discussion of the WCA as a
whole, nor do they substantively analyze or support treating the exclusivity bar as
jurisdictional. In Kellogg, after pointing out that the plaintiffs’ complaint included
causes of action for work-related injuries, and the plaintiffs had failed to plead any of
the exclusivity exceptions to the Act, the opinion concluded that the trial court “was
under a duty to dismiss the [plaintiffs’] complaint for lack of subject matter
jurisdiction.” 253 Ga. App. at 192(1). The opinion went on to cite OCGA § 9-11-
12(h)(3), which states that: “Whenever it appears ... that the court lacks jurisdiction
of the subject matter, the court shall dismiss the action.” Id. Kellogg also cited to
Whitlock v. Barrett, 158 Ga. App. 100, 103 (279 SE2d 244) (1981), a case involving
parental rights, for the proposition that “[j]urisdiction either exists or does not exist
without regard to the merit of the case.” Kellogg, 253 Ga. App. at 192(1). The other
two cases (Savannah Hospitality Servs. and T & R S. Sanitation) in turn simply cite to
Kellogg in support of the holding that the Act’s exclusivity bar is jurisdictional. See

11
Savannah Hospitality Servs., 350 Ga. App. at 199 n.4; T & R S. Sanitation, 365 Ga.
App. at 221(1). To the extent that Kellogg, Savannah Hosp. Servs., and T & R S.
Sanitation can be construed as treating the exclusivity bar as jurisdictional, they are
hereby disapproved.
Based on the foregoing, we conclude that the trial court erred in treating the
exclusivity bar as jurisdictional, and therefore, also erred in holding that Plaintiff bore
the burden of proving that the Act did not apply in the instant case. We therefore
reverse the court’s orders dismissing Plaintiff’s suit for lack of subject matter
jurisdiction and remand to the trial court for further proceedings not inconsistent with
this opinion.7
Judgment reversed and case remanded with direction. Dillard, P. J., and Pipkin, J.,
concur fully and specially.

7
In light of this holding, we decline to reach the merits of Plaintiff’s arguments
regarding the nature of the corporate structure among the Six Flags Defendants and
whether Plaintiff’s claims against the Six Flags Defendants and Hendricks are barred
by the exclusivity remedy provision of the Act. Cf. Perry v. Emory Healthcare Svcs.
Mgmt., 374 Ga. App. 41, 43 (911 SE2d 229) (2025) (where a motion to dismiss is
premised on an affirmative defense, such motion can be granted “only when the
elements of the defense are admitted by the plaintiff or completely disclosed on the
face of the pleadings”); Patterson v. United Svcs. Auto. Ass’n, 375 Ga. App. 821, 821
(917 SE2d 799) (2025) (“When a trial court considers a motion to dismiss, it may only
consider exhibits attached to and incorporated into the complaint and answer;
consideration of matters outside the pleadings converts the motion to one for
summary judgment.” (quotation marks omitted)).
12
A26A0470. CROOK et al. v. SIX FLAGS OVER GEORGIA II, L.P.

et al.

DILLARD, Presiding Judge, concurring specially.

I concur fully in the majority’s thoughtful opinion. There was never any textual

foundation for this Court to conclude that the exclusive-remedy provision of

Georgia’s Workers’ Compensation Act divested courts of subject-matter jurisdiction

over such cases. Consider the relevant text: “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 ... and all other civil liabilities ... on account of such injury,
loss of service, or death ... .”1 There is no textual restriction, then, in the exclusive-

remedy provision limiting the subject-matter jurisdiction of Georgia courts. And

importantly, the General Assembly is perfectly capable of addressing or legislating

about subject-matter jurisdiction when it wishes to do so.2 So, in the absence of an

express, permissible textual limitation of subject-matter jurisdiction, we will not infer

1
OCGA § 34-9-11 (a).
2
See, e.g., OCGA § 15-1-2 (providing that consent of parties cannot confer
subject-matter jurisdiction on court); OCGA § 17-9-4 (“The judgment of a court
having no jurisdiction of the person or subject matter, or void for any other cause, is
a mere nullity and may be so held in any court when it becomes material to the interest
of the parties to consider it.”); OCGA § 9-11-12(b)(1) (“Every defense, in law or fact,
to a claim for relief in any pleading ... shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may, at the option of the
pleader, be made by motion in writing: (1) Lack of jurisdiction over the subject matter
... .”); OCGA § 50-21-26(a)(3) (“No action against the state under this article shall
be commenced and the courts shall have no jurisdiction thereof unless and until a
written notice of claim has been timely presented to the state as provided in this
subsection ... .”); OCGA § 19-8-2(a) (“The superior courts of the several counties
shall have exclusive jurisdiction in all matters of adoption.”); OCGA § 44-2-60 (“For
the purpose of enabling all persons owning real estate within this state to have the title
thereto settled and registered as prescribed by this article, the superior court of the
county in which the land is located shall have exclusive original jurisdiction of all
petitions and proceedings had thereupon.”); OCGA § 15-7-4(a) (“Each state court
shall have jurisdiction, within the territorial limits of the county or counties for which
it was created and concurrent with the superior courts, over the following matters ...
.”).
2
one.3 Such an interpretive principle seems especially appropriate in light of (1) our

duty to abide by the ordinary signification of statutory text,4 (2) superior courts being

3
See Alli v. Ultra Grp. of Companies, Inc., 366 Ga. App. 670, 672–73 (883 SE2d
888) (2023) (“[OCGA § 50-27-102(d)] does not state that COAMs have exclusive
jurisdiction over COAM contract claims between licensees, and a court of law is not
authorized to rewrite the statute by inserting additional language that would expand
its application. The General Assembly could have vested the GLC with exclusive
jurisdiction, and it elected not to do so. The jurisdiction of superior courts in Georgia
is vested by the Constitution of the State of Georgia and by statute. And neither the
legislature nor a judge can limit the jurisdiction of a superior court. Accordingly, the
superior court properly concluded that [appellee’s] claims are within its
subject-matter jurisdiction.” (citation modified)). See also Ga. Pines Cmty. Serv. Bd.
v. Summerlin, 282 Ga. 339, 343(2) (647 SE2d 566) (2007) (rejecting Board’s argument
that “in cases arising under the Georgia Tort Claims Act, any defect in service of
process deprives the trial court of subject matter jurisdiction and therefore cannot be
waived” as “meritless,” and noting “[t]he service of process provision of the Georgia
Tort Claims Act is procedural in nature, not jurisdictional.”). Cf. Arbaugh v. Y&H
Corp., 546 U.S. 500, 516 (126 SCt 1235, 163 LEd2d 1097) (2006) (noting that “when
Congress does not rank a statutory limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in character”).
4
See OCGA § 1-3-1(b) (“In all interpretations of statutes, the ordinary
signification shall be applied to all words ....”). See also State v. Able, 321 Ga. App.
632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in
accordance with the original [or] plain meaning of the text at issue (and all that the text
fairly implies) ... .”); Singletary v. State, 310 Ga. App. 570, 572 (713 SE2d 698) (2011)
(“In construing these statutes, we apply the fundamental rules of statutory
construction that require us to construe the statutes according to their terms, [and]
to give words their plain and ordinary meaning ... .” (punctuation omitted)).
3
courts of general jurisdiction,5 and (3) the breadth and scope of the judicial power

under the Georgia Constitution.6

Moreover, as the majority rightly points out, the decisions relied on by the Six

Flags defendants to argue that the exclusive-remedy provision strips our courts of

subject-matter jurisdiction over workers’ compensation cases are bereft of any

reasoning supporting such a claim. In Kellogg v. Pinkston,7 our subject-matter

5
See, e.g., Ga. Const. of 1983, Art. VI, Sec. IV, Par. I (“The superior courts
shall have jurisdiction in all cases, except as otherwise provided in this
Constitution.”). Significantly, this constitutional provision “establishes the superior
courts as courts of general jurisdiction[.]” Mosley v. Lancaster, 296 Ga. 862, 866 (2)
(770 SE2d 873) (2015).
6
See Ga. Const. of 1983, Art. VI, Sec. I, Par. I (“The judicial power of the state
shall be vested exclusively in the following classes of courts ....” (emphasis supplied)).
See also Sons of Confederate Veterans et al. v. Newton Cnty. Bd. of Commissioners, 368
Ga. App. 511, 522-23 (890 SE2d 468) (2023) (Dillard, P.J., concurring dubitante)
(“So, what does the insertion of ‘exclusively’ into the text of the Judicial Power
Paragraph mean in how we are to understand the nature of the judicial power in
Georgia? Simple logic dictates it means at least three things (and possibly more): (1)
to the extent the executive or legislative branches of Georgia's government previously
exercised any type of judicial power or acted in a way that directly or indirectly
diminished the judicial power, they are no longer authorized to do so; (2) the
fundamental nature of the judicial power (as exercised by the courts outlined in the
Georgia Constitution's Judicial Power Paragraph) has been dramatically strengthened
because of this new exclusivity—as that power now resides solely with the state
judiciary; and (3) the exclusivity of this judicial power unquestionably has
separation-of-powers implications.”).
7
253 Ga. App. 190 (558 SE2d 423) (2001).
4
jurisdiction “analysis” amounts to no more than a citation to OCGA § 9-11-12

(h)(3)’s text8 and the rather banal exhortation that “[j]urisdiction either exists or does

not exist without regard to the merit of the case.”9 And in Savannah Hospitality

Services, LLC v. Scriven,10 we merely rely on the Kellogg Court’s reasoning (such as it

8
See id. at 192(1). See also OCGA § 9-11-12 (h)(3) (“Whenever it appears, by
suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.”).
9
Kellogg, 253 Ga. App. at 192(1), quoting Whitlock v. Barrett, 158 Ga. App. 100,
103 (279 SE2d 244) (1981).
10
350 Ga. App. 195 (828 SE2d 423) (2019).
5
is) in making the same determination.11 Suffice it to say, for stare decisis12 to be

respected, the precedent at issue must have at least some basis in law.13

11
See Scriven, 350 Ga. App. at 199 n.4 (noting that “[w]e have held that the
application of the exclusivity bar is akin to an issue of the trial court’s subject[-]matter
jurisdiction,” and that the state court in Kellogg “erred in denying motion to set aside
default judgment in tort case because workers’ compensation was exclusive remedy;
therefore, state court lacked subject matter jurisdiction”). See also Simmons v. Solo
Cup Operating Corp., 373 Ga. App. 69, 70(1) (907 SE2d 377) (2024) (noting that
“[b]eginning with Kellogg Co. v. Pinkston, this Court has held that the exclusivity bar
is an issue of subject-matter jurisdiction” (citation omitted)); T & R S. Sanitation v.
Lowe, 365 Ga. App. 220, 221(1) n.4, n.5 (878 SE2d 77) (2022) (relying on Kellogg and
Scriven for the proposition that claims falling with the scope of the Workers’
Compensation Act divest courts of subject-matter jurisdiction, and remanding case
to the trial court “because [appellee’s] complaint pleads causes of action for a
work-related injury ... [and may be] precluded by the exclusive[-]remedy provision of
the Workers’ Compensation Act ... .”).
12
Stare decisis is short for “stare decisis et non quieta movere,” a foundational
Latin legal maxim which translates to “stand by the thing decided and do not disturb
the calm.” See James C. Rehnquist, Note, The Power That Shall Be Vested in a
Precedent: Stare Decisis, the Constitution and the Supreme Court, 66 B.U. L. Rev. 345,
347 (1986).
13
See, e.g., Ellison v. Georgia R.R. & Banking Co., 87 Ga. 691, 696 (1) (13 SE
809) (1891) (Bleckley, C.J.) (noting that, when encountering “a great and glaring error
affecting the current administration of justice,” the “maxim for a supreme court ...
is not [s]tare decisis, but [f]iat justitia ruat coelum [let justice be done, though the
heavens fall]”). See also Ammons v. State, 315 Ga. 149, 169(1) (880 SE2d 544) (2022)
(Pinson, J., concurring) (noting that “the rule of law can ... be undermined by
perpetuating decisions that are obviously and harmfully wrong,” and “[w]hen sticking
to such decisions would cause more damage to the rule of law than correcting course,
courts may choose overruling as the lesser evil.”).
6
Unsurprisingly, an invocation of stare decisis is often made “most fervently when the

precedent at issue is least defensible.”14 But a raw appeal to stare decisis and nothing

more is no argument at all. And this is all the Six Flags defendants offer us in defense

of the trial court’s order: precedents with no basis in law.

Finally, as the majority correctly explains, decisions like Kellogg and Scriven are

in conflict with other decisions of this Court and (more importantly) the Supreme

Court of Georgia—which treat the exclusive-remedy provision of the Workers’

Compensation Act as a non-jurisdictional tort immunity that can be used by an

employer as an affirmative defense in appropriate cases.15 So, while it is true that if a

14
Gamble v. United States, 587 U.S. 678, 724–25(II) (139 SCt 1960, 204 LE2d
322) (2019) (Thomas, J., concurring).
15
See Smith v. Ellis, 291 Ga. 566, 578 (731 SE2d 731) (2012) (Nahmias, J.)
(reversing trial court’s grant of summary judgment to employer because there was a
genuine issue of material fact as to whether “[the employee] was acting in the course
of his employment when he injured [the plaintiff] ...”); Johnson v. Hensel Phelps Const.
Co., 250 Ga. 83, 84 (295 SE2d 841) (1982) (noting that “[t]here being no indication
in the record that [appellee] ever raised its statutory[-]employer defense at trial,
appellee may not now inject that issue for the first time on appeal of the denial of its
motion for directed verdict.”); Mullinax v. Pilgrim’s Pride Corp., 354 Ga. App. 186,
188–89(1)(a) (840 SE2d 666) (2020) (holding that the exclusive-remedy provision of
the Workers’ Compensation Act provides employers with a tort-immunity affirmative
defense, which can result in summary judgment being granted to an employer when
there is no genuine issue of material fact as to whether the employee was injured in the
scope of his or her employment); Utz v. Powell, 160 Ga. App. 888, 889(1) (288 SE2d
7
claim falls within the Workers’ Compensation Act, the State Board of Workers’

Compensation has exclusive jurisdiction over it,16 this does not mean our courts lack

jurisdiction to determine whether the exclusive-remedy provision applies to an

601) (1982) (noting that “when the issue of compensability under the workers’
compensation law as a bar to recovery arises defensively in a tort action ... the normal
procedure is for the jury to find facts and then to apply to those facts the law as given
by the trial court in its instructions”).
16
Royal Indem. Co. v. Ga. Insurers Insolvency Pool, 284 Ga. App. 787, 789 (644
SE2d 279) (2007) (noting that the trial court “did not have subject[-]matter
jurisdiction to order the payment of workers’ compensation benefits” because the
State Board of Workers’ Compensation has “exclusive original jurisdiction of claims
under the Workers’ Compensation Law” (citation modified)).
8
employee’s tort action in the first place.17 It is long past time to put this faux

jurisdictional bar to rest, and this is an appropriate vehicle for doing so.

I am authorized to state that Judge Pipkin joins this special concurrence, which

fully joins the majority opinion.

17
See Treaster v. Betts, 324 SW3d 487, 489–90 (Mo. Ct. App. 2010)(“To the
extent that some cases have held that a court has no jurisdiction to determine a matter
over which it has subject matter and personal jurisdiction, those cases have confused
the concept of a circuit court’s jurisdiction—a matter determined under Missouri’s
constitution—with the separate issue of the circuit court’s statutory or common law
authority to grant relief in a particular case.” (citation modified)); Brown v. Ehlert, 255
Mont. 140, 142 (841 P2d 510) (1992) (holding that workers’ compensation exclusivity
and co-employee immunity are not matters going to the trial court’s subject-matter
jurisdiction, but are instead affirmative defenses which are waived if not raised
timely). See also Edward v. GEC, LLC, 67 V.I. 745, 756(2)(b) (2017) (noting that
“courts in other jurisdictions have repeatedly interpreted similar workers’
compensation immunity statutes as not establishing limits on subject-matter
jurisdiction, but simply codifying affirmative defenses which may be waived if not
timely asserted”). Cf. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S.
118, 128(II) & n.4, 129(III) (134 SCt 1377, 188 LE2d 392) (2014) (Scalia, J.) (finding
the question of whether a plaintiff “has a cause of action under the statute” is “a
straightforward question of statutory interpretation[,]” one that “does not implicate
subject-matter jurisdiction, i.e., the court's statutory or constitutional power to
adjudicate the case” (punctuation omitted)); Stillwell v. Topa Ins. Co., 363 Ga. App.
126, 131(1) (871 SE2d 8) (2022) (“[T]he question of whether a plaintiff has a cause of
action under a particular statute is an ordinary issue of statutory interpretation, not a
jurisdictional question.”); Somerville v. White, 337 Ga. App. 414, 417-18(1) (787 SE2d
350) (2016) (noting that “longstanding precedential authority” and OCGA § 9-2-8(a)
require a private right of action to be expressly provided for in a statute’s text and
prohibit courts from creating implied causes of action).
9