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Atlanta, GA— The Georgia Court of Appeals last week reversed an $8 million award for the family of a stuntman who fell to his death while filming a scene for the zombie TV series The Walking Dead, finding the state’s Workers’ Compensation Act barred recovery in the personal injury claim.
In an opinion written by Presiding Judge Sara Doyle, the Court held John Bernecker was employed by Stalwart Films, the production company overseeing filming of the 2017 stunt in which Bernecker died, and not an independent contractor on the job. As a result, Bernecker’s family was limited to recovery under Georgia’s Workers’ Compensation Act.
Bernecker died in a 20-plus-foot fall from a balcony while filming a fight scene for The Walking Dead, a series about a group navigating a zombie apocalypse. Bernecker’s family claims that a lack of appropriate safety measures caused the 33-year-old stuntman to miss his mark on a safety pad catcher system, striking the ground underneath the balcony.
In the 2019 trial, covered gavel-to-gavel by CVN, jurors handed down an $8.6 million verdict against Stalwart and others, but found Bernecker himself 6% responsible for the accident, reducing the post-verdict award to about $8.08 million.
However, the defendants argued the trial court erred in failing to direct a verdict in their favor on the Workers’ Compensation Act issue. They pointed to Bernecker’s written contract concerning the scene's filming to argue Bernecker was an employee of the company.
Reviewing the contract, the appeals court agreed, and found its terms gave Stalwart the right of control that establishes an employment relationship under Georgia law. Judge Doyle noted Bernecker’s stunt was choreographed in detail as part of a larger scene being filmed, and he was expected to work on a schedule dictated by Stalwart, among other mandates.
“In this case, although Bernecker could request minor changes to assist him in performing the stunt… or he could refuse to perform the stunt if he felt unsafe, ultimately Stalwart retained the right to control the time, manner, and method of the work Bernecker performed,” Judge Doyle wrote.
In so holding, the Court rejected plaintiffs’ argument that an IRS 1099 form Bernecker completed for the work created a factual dispute over his employment status.
“The fact that [an employer] issued its workers [IRS] Form 1099 (rather than Form W-2) and did not withhold taxes from their paychecks or provide insurance for the workers does not create a jury question on [Bernecker’s] status as an employee,” Judge Doyle wrote, quoting prior case law.
And while Judge Doyle noted Bernecker had a loan-out company under which he performed work, she concluded that any agreement between the loan-out company and Stalwart did not change the result.
"The existence of a contract between the loan-out company and Stalwart would only evince that Bernecker was a borrowed servant of Stalwart’s,” Judge Doyle wrote.
“The result of either status — that Bernecker was a direct employee of Stalwart or that he was a borrowed servant of Stalwart — barred the plaintiff’s tort claims against Stalwart.”
Chief Judge Christopher McFadden and Judge Kenneth B. Hodges III concurred in the opinion.
Email Arlin Crisco at acrisco@cvn.com.
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