26

457 So. 2d 180, 1984 La. App. LEXIS 9560
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1984
DocketNo. 16,477-CA
StatusPublished

This text of 457 So. 2d 180 (26) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
26, 457 So. 2d 180, 1984 La. App. LEXIS 9560 (La. Ct. App. 1984).

Opinion

FRED W. JONES, Jr., Judge.

The plaintiff, Helen Francis Robinson, brought this action in tort against her supervisor, Takakyo Ikari, for a gunshot wound which he inflicted upon her during the course of their duties in the kitchen at the Nanking Restaurant. Also named as defendants were Nanking Restaurant, Inc., and Insurance Company of North America. The trial judge granted Ikari’s motion for summary judgment, asserting the undisputed facts show that the gunshot was accidental and that suit against a co-employee for an unintentional tort is barred by La.R.S. 23:1032. The judgment was limited to the defendant, Takakyo Ikari. The plaintiff appealed, alleging that the defendant was not in the “normal course and scope of employment,” and that intent is best determined at a trial on the merits.

We affirm for the reasons hereinafter explained.

The plaintiff’s deposition states the facts as follows:

Q. What took place?
A. He had a little easing, sort of like the clear casing you buy cigars in—
Q. A little plastic box?
A. Yes. And it had a bullet in it. So he said, “See, I have a silver bullet.” And I said, “That ain’t no silver bullet, that ain’t nothing but an old .25,” you know, like that. And he went on. I went on doing what I was doing, and he went on doing what he was doing. So I was mixing a batter then, and about ten minutes later I was frying the pork. And I can’t tell you what direction he came in from, if he came from behind me, the side of me or what, you know, but all I know is I could see his hand, and I can’t tell you exactly which hand it was, and there was a gun laying in it. And it was a .25, you know, because I know what it looks like. So he put it in the firing position and he pointed it toward the wall.
[182]*182The way the kitchen is set up, there is a wall behind the Chinese woks, you know. So it was pointed toward that, and he went to pull back on it, and I told him, I said, “Don’t do that; take the clip out.” I said, “Because a .25 will go off if you blow at it too hard.” So, apparently he didn’t hear me, or something, because he just pulled it back and then let the lever go. And after that, all I know is he turned around, pointed it at me, and somehow it went off.
Q. Just the second he swung toward you it went off?
A. He turned around and faced me— you know, I was taking the pork out of the wok — and all I know is, I heard it when it went off, and it hit me here, (indicating) and I said, “Damn, Taka, you shot me,” like that, you know. And I just left.
Q. Did he give you any explanation at this time of why the gun went off?
A. He said he didn’t know it was loaded.
Q. He didn’t know it was loaded, or he didn’t know whether or not it was loaded?
A. He said, “I didn’t know it was loaded."
Q. Had you all been having any disagreements that would give any indication that he wanted to shoot you with the gun?
A. No.
Q. Did he seem upset that you had been shot?
A. Well, he was in shock.
Q. He was in shock?
A. Yes. I think he was in a bigger shock than I was. Because he stood on the boards in the same position a good five minutes before he ever came to the area where I was. I left him standing there.
Q. At the time, did you know of any reason why he might want to shoot you with the gun.
A. No.
(Deposition of Helen Francis Robinson, pp. 11-15)

The trial judge stated in his reasons for summary judgment that the only witnesses to the shooting were the plaintiff and the defendant. He noted that sworn statements by both parties indicated that the shooting was an accident. He concluded that there was no genuine issue of material fact concerning the incident. The court relied on the definition of an “intentional act” in Bazley v. Tortorich, 397 So.2d 475 (La.1981) and Citizen v. Daigle, 418 So.2d 598 (La.1982) and determined that this defendant did not commit an “intentional act” within the meaning of La.R.S. 23:1032. Finally, the trial judge concluded that “Mr. Ikari’s deviation from his regular duties did not place him outside the normal course and scope of his employment.”

The granting of a motion for summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits filed, show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. Article 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Travelers Ins. Co. v. Blanchard, 431 So.2d 913 (La.App. 2d Cir.1983).

In the present case, there is no genuine issue as to a material fact. There are two issues of law: (1) whether the actions of the defendant constitute an “intentional act” within the meaning of La.R.S. 23:1032, and (2) whether the actions of the defendant were within the “normal course and scope of his employment.”

INTENTIONAL ACT

Bazley is the leading case explicating the amendment to R.S. 23:1032 made by Act 147 of 1976. “The principal legislative aim [183]*183of the 1976 amendment was to broaden the class of defendants to be granted immunity from suits by injured employees in tort or delict.” Bazley, at 479. However, the necessity for punishing intentional wrongdoers caused the legislature to provide that “the exclusive nature of the compensation remedy does not apply to intentional acts.” Bazley, at 480. The court then determined that the legislative aim was to equate an “intentional act” with the well-established meaning of “intentional tort.” The court expressly refused to focus on the intentional act, instead it found that the legislative intent was to emphasize the intentional harm or consequences.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Travelers Ins. Co. v. Blanchard
431 So. 2d 913 (Louisiana Court of Appeal, 1983)
Citizen v. Theodore Daigle and Bro., Inc.
418 So. 2d 598 (Supreme Court of Louisiana, 1982)
Powell v. Gold Crown Stamp Company
204 So. 2d 61 (Louisiana Court of Appeal, 1967)
Chaisson v. Domingue
372 So. 2d 1225 (Supreme Court of Louisiana, 1979)
Sanders v. Hercules Sheet Metal, Inc.
385 So. 2d 772 (Supreme Court of Louisiana, 1980)
Bazley v. Tortorich
397 So. 2d 475 (Supreme Court of Louisiana, 1981)
Conaway v. Marine Oil Co.
110 So. 181 (Supreme Court of Louisiana, 1926)

Cite This Page — Counsel Stack

Bluebook (online)
457 So. 2d 180, 1984 La. App. LEXIS 9560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/26-lactapp-1984.