Richardson filed suit against her former employer, alleging violation of the Georgia Equal Employment of the Handicapped Code, battery and intentional infliction of emotional harm.  She claimed that her former co-worker, Hennly, would smoke a pipe around her, causing her “nausea, stomach pain, loss of appetite, loss of weight, headaches and anxiety.” She was twice hospitalized due to her adverse reactions.  Shortly after she returned to work after her second hospitalization, her employment was terminated, primarily for excessive absenteeism.  Hennly prevailed in the district court on his motion for summary judgment against the claims of battery and intentional infliction of emotional distress; Richardson appealed.  The company appealed the denial of its summary judgment motion; the appeals were consolidated.  The Court of Appeals rejected Hennly’s argument that pipe smoke is “an immaterial substance incapable of battering another,” ruling that “[t]he unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.”  The court restored Richardson’s claims against Hennly and upheld the denial of First Federal’s summary judgment motion.

On June 27, 1994, the Georgia Supreme Court, at 444 S.E.2d 317, 264 Ga. 355, 3 A.D. Cases 617 (1994), by a 6-1 opinion, reversed the decision of the Court of Appeals, ruling that Richardson’s maladies arose “in the course of and out of employment.”  Thus, she should seek a remedy under a state workers’ compensation claim. The dissenting justice said that she believes Hennly could be found liable since he “intentionally treated Richardson differently from other employees by harassing her, flaunting her inability to do anything about his acts because of her inferior position and even blowing his pipe smoke directly in her face.”  See Rankin, B., “The Ga. Supreme Court Ruling Says Worker Choked by Smoke Can’t Seek Damages,” Atlanta Journal and Constitution, June 28, 1994, C4.  The Court of Appeals of Georgia, at 448 S.E.2d 91, 214 Ga. App. 364, entered orders accordingly.

434 S.E.2d 772, 209 Ga. App. 868, No. A93A0807 (Ga. Ct. App.)(1993).