Bonin v. Bon Electrical Contractors, Inc.

567 So. 2d 766, 1990 La. App. LEXIS 2162, 1990 WL 145708
CourtLouisiana Court of Appeal
DecidedOctober 3, 1990
DocketNo. 89-456
StatusPublished

This text of 567 So. 2d 766 (Bonin v. Bon Electrical Contractors, Inc.) 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
Bonin v. Bon Electrical Contractors, Inc., 567 So. 2d 766, 1990 La. App. LEXIS 2162, 1990 WL 145708 (La. Ct. App. 1990).

Opinion

KING, Judge.

The sole issue presented by this appeal is whether the trial court erred in granting defendants’ Motion For Summary Judgment dismissing plaintiff’s claim for damages sought under the intentional act exception to the Louisiana Worker’s Compensation Act, La. R.S. 23:1032.

Aymar Bonin (hereinafter plaintiff) instituted this tort suit against his employer, Bon Electrical Contractors, Inc., and his co-employees, Butch Watkins and Jim Thor-nell (hereinafter collectively referred to as defendants). Plaintiff, who was injured while in the course and scope of his employment with defendants, alleged that defendants either intended plaintiff’s injuries or knew that his injuries were substantially certain as a result of electrical work being performed during the construction of Hamilton Medical Center Hospital in Lafayette, Louisiana. Defendants filed a Motion For Summary Judgment contending that they did not commit an intentional act within the meaning of La. R.S. 23:1032 and, as a result, plaintiff’s sole remedy was worker’s compensation. The motion was heard on October 28, 1988, and taken under advisement. On March 16, 1989, the trial court issued written reasons for judgment finding that plaintiff’s injuries were not SUB-tained as the result of an intentional act on the part of defendants. A formal written judgment was signed dismissing plaintiff’s suit. From this judgment plaintiff has timely appealed. We affirm.

FACTS

Plaintiff was employed as an electrician for Bon Electrical Contractors and assigned to work at the construction site of the Hamilton Medical Center Hospital in Lafayette, Louisiana. His supervisor on the job was Butch Watkins and the assistant supervisor was Jim Thornell. On August 30, 1984, plaintiff was injured when the electrical crew on the job was pulling electrical cable from an underground conduit. The electrical cable had previously been installed in a conduit beneath the ground floor of the building but had to be removed from the conduit because some of the electrical cable was damaged or defective.

In order to remove the electrical cable, the crew tied a rope around the electrical cable and ran the rope up in the elevator shaft to a pulley on the sixth floor of the building. The rope continued back down the elevator shaft, then through a pulley on the second floor and was then wrapped around the “cathead” on the pulling machine or “tugger” on the ground floor. Plaintiff was positioned at the tugger on the ground floor to keep friction on the rope and to keep it secure on the cathead.

The assistant supervisor, Jim Thornell, initially operated the tugger and the rope. In his deposition, which was admitted into evidence in connection with the motion for summary judgment, Thornell stated that the reason he worked the rope first was to make sure the operation was set up properly in order to have a safe pull. Thornell admitted that any pulling operation is potentially dangerous but he was satisfied, after working the rope, that this operation was safe.

Plaintiff operated the tugger and the rope. While operating the tugger, the rope jerked from plaintiff’s hands and came off the cathead. Plaintiff stepped back and [768]*768accidentally caught his foot in a loop of the rope. The countervailing weight of the suspended electrical cable falling down the elevator shaft caused plaintiff to be lifted up the elevator shaft. When the plaintiffs foot was released from the rope, he fell head first into the pit of the elevator shaft. Plaintiff sustained various injuries as a result of this accident.

On August 1, 1985, plaintiff filed this tort suit. He alleged that he was intentionally injured within the meaning of the exception to this state’s worker’s compensation laws. Defendants filed a Motion For Summary Judgment alleging that there was no issue of material fact as to whether an intentional tort was committed and that, as a matter of law, they were entitled to judgment in their favor. The trial court granted the Motion For Summary Judgment and in its written reasons stated:

“The facts do not lend themselves to show either that the defendants desired to injure the plaintiff or that such injuries were substantially certain to result from their activities....
Therefore, it is my finding that there is no genuine issue of material fact as to the question of an intentional tort and that the defendants are entitled to the judgment dismissing plaintiff’s suit as a matter of law....”

Plaintiff appeals alleging that summary judgment should not have been granted because there exists a genuine issue as to whether defendants were substantially certain that plaintiff would be injured during the pulling operation.

LAW

The Louisiana Worker’s Compensation Act, La. R.S. 23:1032, reads in part:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee.
* * * * * *
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” (Emphasis added.)

Under this statute, an injured employee may seek recovery in tort for a work-related injury intentionally caused by his employer or his co-employee.

As the Louisiana Supreme Court observed in Caudle v. Betts, 512 So.2d 389, 390 (La.1987):

“In interpreting the statute, this court has held that compensation shall be an employee’s exclusive remedy against his employer for an unintentional injury covered by the act, but that nothing shall prevent an employee from recovering from his employer under general law for an intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981)....”

Louisiana courts have defined intentional act for purposes of the exception to the exclusivity of the Louisiana worker’s compensation statute as an act whereby the defendant either consciously desired the physical result that followed or believed that the result was substantially certain to follow from his conduct. Bazley v. Tortorich, supra; Burns v. Kenworth Motor Truck Co., 548 So.2d 49 (La.App. 3 Cir.1989).

In this case, plaintiff claims that his supervisory co-employee, Thornell, had actual knowledge that the rope would jerk in the operator’s hands because the rope jerked when Thornell initially worked the tugger. Therefore, plaintiff concludes that Thornell was substantially certain that, when plaintiff took control of the rope, it would jerk in plaintiff's hands, thereby causing him injury. Plaintiff further alleges that the reason Thornell allowed plaintiff to operate the tugger and the rope was so that Thor-nell could remove himself from the “zone of danger.”

Plaintiff cites the case of Babin v. Edwards, 456 So.2d 659 (La.App. 1 Cir.1984), writ den., 460 So.2d 604 (La.1984), in sup[769]*769port of his “zone of danger” theory. In that ease, the court rejected plaintiffs claim alleging an intentional tort on the part of his foreman.

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Related

Simoneaux v. EI Du Pont De Nemours and Co., Inc.
483 So. 2d 908 (Supreme Court of Louisiana, 1986)
Caudle v. Betts
512 So. 2d 389 (Supreme Court of Louisiana, 1987)
Bazley v. Tortorich
397 So. 2d 475 (Supreme Court of Louisiana, 1981)
Babin v. Edwards
456 So. 2d 659 (Louisiana Court of Appeal, 1984)
Babin v. Edwards
460 So. 2d 604 (Supreme Court of Louisiana, 1984)
Burns v. Kenworth Motor Truck Co.
548 So. 2d 49 (Louisiana Court of Appeal, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
567 So. 2d 766, 1990 La. App. LEXIS 2162, 1990 WL 145708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonin-v-bon-electrical-contractors-inc-lactapp-1990.