Canzoneri v. Smith

381 So. 2d 973, 1980 La. App. LEXIS 3528
CourtLouisiana Court of Appeal
DecidedMarch 11, 1980
DocketNos. 10866, 10867
StatusPublished

This text of 381 So. 2d 973 (Canzoneri v. Smith) 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
Canzoneri v. Smith, 381 So. 2d 973, 1980 La. App. LEXIS 3528 (La. Ct. App. 1980).

Opinion

GULOTTA, Judge.

Plaintiffs in these consolidated wrongful death suits against executive officers appeal the dismissal of their claims on exceptions of no cause of action.

In one of these suits, Linda Giglio Can-zoneri, the surviving spouse of Francisco Canzoneri, alleges that on January 25, 1974 her husband was employed as a manager by Self-Service Restaurants, Inc., and was assigned to a Burger King Store in the City of New Orleans. According to the petition, in the early morning hours Ronald Smith, a former employee of the Burger King store who had been discharged “several days” earlier by Canzoneri, gained entrance into the store, perpetrated an armed robbery ' and, in the course of that robbery, shot and killed Canzoneri. The petition further alleges that the store had a large cash flow, was located in a high-crime area, and had experienced problems with theft. Ronald Smith, according to the petition, was a dangerous individual with a prior criminal record of theft and robbery, and at the time he became employed was a convicted felon on “probation” after having spent time at the Louisiana State Penitentiary at Angola, Louisiana.

The suit is directed not only against Ronald Smith, the assailant, but also against the chairman of the board/stockholder, the president and chief executive officer/stockholder, the executive vice-president/stockholder, the vice-president and treasurer/stockholder, the vice-president/legal secretary, the assistant secretary, and the managing agent/personnel director, all of whom are executive officers of Self-Service Restaurants, Inc., the decedent’s employer. According to the petition, these executive officers were delegated and [975]*975charged with the duty of formulating, implementing and enforcing policies pertaining to the screening, hiring, management, discipline, security and safety of the personnel. The petition also sets forth that they were responsible for policy and procedures pertaining to cash flow and collection and transfer of revenue.

The specific acts of negligence, asserted in the petition, for each executive officer are identical and are as follows:

a. Failure to provide petitioner’s husband with a safe place to work.
b. Failure to properly screen applicants for employment, particularly the defendant, Ronald Smith.
c. Failure to properly develop, formulate and enforce an employment applicant screening system.
d. Failure to warn decedent and other employees working with Ronald Smith of his criminal record and his propensity for felonious acts, when he knew or should have known of his background.
e. Failure to provide adequate security at Store No. 1182 despite the fact that he knew or should have known that said store was in a high crime area, and had experienced prior to January 25, 1974 problems with theft and robbery, and had a high cash flow.
f. Failure to develop and/or properly enforce a safe and secure system for the handling of- its cash flow and the transfer of its cash.
g. Subjecting employees, particularly the decedent, to having to work with potentially dangerous co-employees.
h. Failure to issue adequate security instructions to its employees.
i. Placing an individual, namely, Ronald Smith, whom he knew, or should have known, had a dangerous criminal record, in an employment classification and work environment in which he was close to a large cash flow, without adequately explaining his character and background to the management of Store No. 1182.
j. The negligent and careless delegation of duties to subordinates pertaining to security, safety, personnel hiring and screening, employee discipline and management, and the control, collection, and transfer of revenues.
k. Other acts of negligence which shall be proven at trial.

Based upon these acts of negligence on the part of the defendant executive officers, plaintiff claims entitlement to recovery against them.

In a companion suit, Imelda and George Brubaker, parents of another Burger King employee killed in the robbery attempt, direct their suit against Self-Service Restaurants, Inc., the executive officers of the employer corporation, and the corporation’s liability insurer. The allegations of the petition and the supplemental and amended petition, when read together, assert (although in some cases in different language) substantially the same or similar acts of negligence on the part of the executive officers as set forth in the Canzoneri suit. In the companion Brubaker suit, however, plaintiffs also assert a tort claim against the decedent’s employer.

In connection with the claim against the employer, i. e., Self-Service Restaurants, Inc. and Self-Service Restaurants No. 132, Inc., our jurisprudence is well settled that plaintiff’s exclusive remedy against the employer is in workmen’s compensation. R.S. 23:1032; Jenkins v. Archer-Daniels-Midland Co., 347 So.2d 314 (La.App. 4th Cir. 1977). Accordingly, we find no error in the trial court’s judgment dismissing on exception of no cause of action the Brubaker tort claim against their decedent-son’s employer.

The more difficult problem, however, is whether the allegations of the petitions in the consolidated suits state a cause of action against the executive officers. R.S. 23:13 provides:

“13. Employers’ duty as to safety.
Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish [976]*976and use safety devices and safeguards,' shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.”

The landmark case of Canter v. Koehring Company, 283 So.2d 716 (La.1973), stated that the executive officer is individually liable to a third person, including co-employees, damaged solely by reason of the defendant’s individual breach of an employment-imposed duty, under the following circumstances:

1. The employer owes a duty of care to the third person, breach of which has caused the damage for which recovery is sought.
2. The employer delegated this duty to the defendant.
3. The defendant breached this duty through personal (as contrasted with technical or vicarious) fault. He must have a personal duty toward plaintiff, breach of which specifically caused plaintiff’s damages.
4. If the defendant’s general responsibility was ■ delegated with due care to responsible subordinates, he is not himself personally liable unless he personally knew or should have . known of its nonperformance or mal-performance, but he nonetheless failed to cure the risk of harm.

Further, in Pfister v. Phoenix of Hartford Insurance Company,

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

Related

Pfister v. Phoenix of Hartford Insurance Company
290 So. 2d 362 (Louisiana Court of Appeal, 1974)
Lou-Con, Inc. v. Gulf Building Services, Inc.
287 So. 2d 192 (Louisiana Court of Appeal, 1974)
Abshire v. Hartford Accident & Indemnity Ins. Co.
289 So. 2d 545 (Louisiana Court of Appeal, 1974)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)
Jenkins v. Archer-Daniels-Midland Co.
347 So. 2d 314 (Louisiana Court of Appeal, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
381 So. 2d 973, 1980 La. App. LEXIS 3528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canzoneri-v-smith-lactapp-1980.