¶1dissenting in part.
¶2While I concur in Division 2,1 do not agree with Division 1 of the majority opinion. The majority concludes that “Hennly’s smoking was a part of [Richardson’s] work environment, rather than an act directed at Richardson personally,” majority opinion at 356, and, accordingly, her exclusive remedy is under the Workers’ Compensation Act, OCGA § 34-9-11 (a). I agree that Hennly’s smoking would probably not be actionable in tort if it was not directed at Richardson personally, especially as First Federal was not a smoke-free work place. However, I do not believe that the question of whether Hennly directed his acts at Richardson personally was properly resolved on summary judgment.
¶3The Court of Appeals has held that
[t]he issue of whether an injury arises out of and in the course of employment and hence is compensable under the workers’ compensation law is a mixed question of fact and law. The finder of fact must first hear all the relevant evidence concerning the injury and, after finding the facts with regard thereto, render a conclusion of law on whether it was job-related.
¶4Utz v. Powell, 160 Ga. App. 888, 889 (288 SE2d 601) (1982).
This is true when the question of whether an injury is job-related and hence arises as an affirmative issue in a workers’ compensation case . . . [and] when the issue of compensability under workers’ compensation law as a bar to recovery arises defensively in a tort action, where 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.
¶6The record in this case reveals some evidence that Hennly’s smoking was directed at Richardson personally, and for reasons unrelated to Richardson’s “performance of [her] work-related duties.” *359Lindsey v. Winn Dixie Stores, 186 Ga. App. 867, 868 (1) (368 SE2d 813) (1988). For example, there is evidence that Hennly knew of Richardson’s serious adverse reactions to his pipe smoke and 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. Therefore, I would hold that there is a genuine issue of material fact with respect to whether Richardson’s injuries were “caused by the willful act of a third person directed against an employee for reasons personal to such employee,” OCGA § 34-9-1 (4), and that the trial court erred in granting summary judgment on that issue.