Brown v. Doe

46 So. 3d 674, 9 La.App. 5 Cir. 1032, 2010 La. App. LEXIS 992, 2010 WL 2595229
CourtLouisiana Court of Appeal
DecidedJune 29, 2010
Docket09-CA-1032
StatusPublished
Cited by1 cases

This text of 46 So. 3d 674 (Brown v. Doe) 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
Brown v. Doe, 46 So. 3d 674, 9 La.App. 5 Cir. 1032, 2010 La. App. LEXIS 992, 2010 WL 2595229 (La. Ct. App. 2010).

Opinions

CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

Plaintiff, Donisha Brown, was an employee at a Rally’s Restaurant in Jefferson Parish. She was working the drive-thru [675]*675window on March 21, 2005. On that date, the manager on duty was Shantell Davis. Davis was cleaning the oven and placed the can of oven cleaner on a shelf above the deep fryer. The can of oven cleaner then fell into the deep fryer and exploded. Brown and other employees in the restaurant were burned with hot grease. The injured employees, including Brown, were paid workers’ compensation indemnity benefits and medical expenses.

On March 20, 2006, Brown filed a lawsuit in the Twenty-Fourth Judicial District Court against Checker’s Drive-In Restaurant, Inc. d/b/a Rally’s Hamburgers, Inc. She alleged she sustained injuries as a result of being burned by the hot grease due to the intentional acts of Davis. On April 25, 2008, defendants filed a motion for summary judgment alleging Brown’s suit must be dismissed because her exclusive remedy is limited to workers’ compensation benefits because she was in the course and scope of her employment with Rally’s at the time of the explosion and injury. Brown opposed the motion arguing Rally’s, through its employee, had wantonly and recklessly exposed her to the extremely |sdangerous and harmful environment which ultimately injured her, thus Rally’s was liable to her for these intentional acts beyond its workers’ compensation liability.

The trial court held a hearing on the motion for summary judgment January 21, 2009 and granted the motion. A written judgment was executed by the trial court granting the motion for summary judgment and dismissing Brown’s suit on February 10, 2009. Brown now appeals this judgment. For the reasons which follow, we affirm the trial court’s judgment granting defendants’ motion for summary judgment and dismissing all claims of Brown.

DISCUSSION

A motion for summary judgment is properly granted only on a showing that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95) 665 So.2d 1272. Summary judgments are reviewed on appeal de novo. Tassin, supra, citing Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. Tassin, supra, citing Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 731, 750.

On appeal, Brown argues the trial court erred in finding her exclusive remedy lies in La. R.S. 23:1032(A) of the Workers’ Compensation Act. She further argues summary judgment is inappropriate because genuine issues of material fact remain because credibility determinations were made to determine the intent and knowledge of Davis, the manager.

|4La. R.S. 23:1032(A) provides as follows:

A. (l)(a) Except for intentional acts provided for in Subsection B, 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, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as [676]*676available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.

In accordance with this section of the article, since Brown was injured while in the course and scope of her employment, her exclusive remedy for her injuries is workers’ compensation. Brown argues the injuries she suffered were caused by the intentional acts of the restaurant’s manager, Davis. Therefore, she argues the exception of La. R.S. 23:1032(B) applies. La. R.S. 23:1032(B) provides:

B. 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.

In accordance with this section of the article, if Brown’s injuries were caused by an intentional act, she is entitled to pursue a tort claim against those who caused her injuries. The trial court found there was no intentional act and granted summary judgment in favor of defendants, dismissing Brown’s tort claims. We agree with the trial court and find the conduct of Davis, the restaurant manager, does not amount to an intentional act.

The Louisiana Supreme Court addressed whether an act by an employee was an intentional act in Reeves v. Structural Preservation Systems, 1998-1795, (La.3/12/99), 731 So.2d 208. The Supreme Court in Reeves determined the meaning of an “intentional act” based on its previous decision in Bazley v. Tortorich, 397 So.2d 475 (La.1981), and a discussion of the legislative intent of the exception of |sLa. R.S. 23:1032(B). The Supreme Court found the meaning of “intent” is when the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Reeves, supra, citing, Bazley, supra.

In Reeves, the Supreme Court further explained that “substantially certain to follow” requires more than a reasonable probability that an injury will occur. Reeves, supra, citing Jasmin v. HNV Cent. Riverfront Corp., 94-1497, (La.App. 4 Cir. 8/30/94), 642 So.2d 311. Further, believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls -within the range of negligent acts that are covered by workers’ compensation. Reeves, supra.

In Bazley, the Supreme Court found the employee’s acts of operating a garbage truck without a working horn, disregarding mechanical and electrical maintenance standards, failing to keep a lookout, failing to stop in a safe place and failing to warn the plaintiff of danger did not amount to an intentional act. Bazley, supra. In Reeves, the Supreme Court found that the employer’s act of requesting that an employee manually moving a sandblasting pot, even though OSHA guidelines prohibited the pot from being moved manually and the supervisor feared someone would eventually get hurt if the pot was moved manually, was not an intentional act under the workers’ compensation exception of La. R.S. 23:1032(B).

In this case, Davis was cleaning with an oven cleaner and placed the can on the shelf above the deep fryer. Another employee accidentally knocked the can of oven cleaner into the deep fryer of hot [677]*677grease.

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Related

Brown v. Doe
46 So. 3d 674 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
46 So. 3d 674, 9 La.App. 5 Cir. 1032, 2010 La. App. LEXIS 992, 2010 WL 2595229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-doe-lactapp-2010.