Christin Decou v. Target Corporation of Minnesota

• Court: Louisiana Court of Appeal
• Decided: February 7, 2007
• Docket: CA-0006-1100
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1100

CHRISTIN R. DECOU

VERSUS

TARGET CORPORATION OF MINNESOTA

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 20033533 “J” HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Marc T. Amy, David J. Painter, and James T. Genovese, Judges.

AFFIRMED.

Bob Broussard D. Patrick Daniel, Jr. Bob Broussard, APLC 201 Rue Iberville, Suite 300 Lafayette, Louisiana 70598-0827 (337) 232-3333 COUNSEL FOR PLAINTIFF/APPELLANT: Christin R. Decou

John S. Lawrence, Jr. David P. Curlin Lawrence & Associates 215 St. Ann Drive, Suite 2 Mandeville, Louisiana 70471 (985) 674-4446 COUNSEL FOR DEFENDANT/APPELLEE: Target Corporation of Minnesota GENOVESE, Judge.

Plaintiff, Christin R. Decou (Decou), appeals the judgment of the trial court

granting summary judgment in favor of Defendant, Target Corporation of Minnesota

(Target). The trial court ruled that the intentional tort exclusion to the Workers’

Compensation Act did not apply, thereby dismissing Decou’s claims. For the

following reasons, we affirm.

STATEMENT OF THE CASE

Decou alleges that she was injured on May 1, 2003 in the course and scope of

her employment at Super Target on Ambassador Caffery in Lafayette, Louisiana,

when she slipped and fell on ice in a freezer. Decou filed suit against Target in the

district court, alleging that her injuries were caused by the intentional actions of

Target, through its employees, which made the risk of her injuries substantially

certain to occur. Target filed a motion for summary judgment seeking to dismiss

Decou’s claims on the basis that the intentional tort exclusion to the Workers’

Compensation Act, set forth in La.R.S. 23:1032(B), was inapplicable. The trial court

granted Target’s motion for summary judgment, finding that the actions in this case

did not rise to the level of an intentional tort as defined by the jurisprudence and that

the Workers’ Compensation Act applied. Decou appeals.

FACTS

On May 1, 2003, Decou was employed as a bakery team member at Super

Target on Ambassador Caffery in Lafayette, Louisiana. Decou’s duties included

retrieving goods from the bakery’s freezer in order to bake the items for their eventual

sale and also returning goods to the freezer. Decou alleged that her accident occurred

in the bakery’s freezer while she was in the process of returning and retrieving a box

1 of goods. Decou testified that in order to return the box to an upper shelf, she used

an aluminum ladder which was routinely kept in the bakery’s freezer. After returning

the box of goods to an upper shelf, Decou then retrieved a different box of goods also

located on an upper shelf in the freezer. Decou alleges that as she descended the

ladder, with box in hand, “the ladder slipped” causing her to fall to the floor due to

the presence of ice on both the ladder and the freezer’s floor. Decou alleges that as

a result of her fall, she injured her lower back which necessitated a lumbar

discectomy with fusion.

ISSUES

In her brief to this court, Decou presents the following issues:

1. Whether the evidence presented on behalf of [Decou] regarding Target’s practices and the circumstances surrounding her injuries established, more probably than not, that injuries of the nature she suffered were substantially certain to occur and, therefore, Target’s [m]otion [f]or [s]ummary [j]udgment should have been denied.

2. Whether the evidence presented on behalf of [Decou] established genuine issues of material fact with regard to the issue of whether the injuries in suit were substantially certain to follow as a result of Target’s conduct, thereby precluding [s]ummary [j]udgment.

LAW AND DISCUSSION

In this appeal, Decou contends that the trial court erred in granting Target’s

motion for summary judgment, alleging that there are genuine issues of material fact

as to whether Target, the employer, placed her in a work area where her injuries were

substantially certain to occur.

A motion for summary judgment will be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to material fact, and that mover is entitled to

2 judgment as a matter of law.” La.Code Civ.P. art. 966(B). The summary judgment

procedure is favored and “is designed to secure the just, speedy, and inexpensive

determination of every action . . . .” La.Code Civ.P. art. 966(A)(2).

“In ruling on a motion for summary judgment, the [trial court]’s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but instead

to determine whether there is a genuine issue of triable fact.” Hines v. Garrett, 04-

806, p. 1 (La. 6/25/04), 876 So.2d 764, 765. Further, the trial court should resolve

all doubts in the non-moving party’s favor. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.

Id. at 765-66 (citations omitted).

The moving party bears the burden of proving that summary judgment is

appropriate. However, when the movant will not bear the burden of proof at trial on

the matter that is before the court, the movant’s burden on the motion does not require

him to negate all of the essential elements of the adverse party’s claim, but rather to

point out to the court that there is an absence of factual support for one or more of the

elements essential to the adverse party’s claim. See La.Code Civ.P. art. 966(C)(2).

If the adverse party fails to produce factual support to convince the court that he can

carry his burden of proof at trial, then there is no genuine issue of material fact and

granting of the motion is mandated. Hines, 876 So.2d 765.

“Appellate courts review summary judgments de novo, using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate.” Richard v. Hall, 03-1488, p. 4 (La. 4/23/04), 874 So.2d 131, 137.

3 Therefore, we must determine whether there is any genuine issue of material fact, and

whether the mover is entitled to judgment as a matter of law. Id.

Decou filed the instant suit seeking to recover damages under the intentional

acts exception to the Workers’ Compensation Act. Target moved for summary

judgment asserting that Decou could not carry her burden of proving the existence of

the necessary elements which constitute an “intentional act” for the purpose of

allowing her claim to proceed as an exception to the exclusivity of the workers’

compensation remedy. To constitute an intentional act, Decou must show that Target

either consciously desired the physical results of its particular conduct or that it had

knowledge that the physical results were substantially certain to follow such conduct.

Reeves v. Structural Pres. Sys., 98-1975 (La. 3/12/99), 731 So.2d 208; Mouton v.

Blue Marlin Specialty Tools, Inc., 01-648 (La.App. 3 Cir. 10/31/01), 799 So.2d 1215.

After reviewing the record, we find that the evidence produced by Decou fails

to establish that she will be able to satisfy her evidentiary burden of proof at trial.

Decou basically alleges that Target failed to provide her with a safe working

environment. Decou’s own testimony does not support the conclusion that Target

consciously desired an injury to occur or was substantially certain its conduct would

cause injury to Decou. At her deposition, Decou testified that she verbally remarked

to a supervisor that the floor in the freezer was slippery; however, Decou admitted

that she never registered any type of written complaint to Target about the icy

conditions in the freezer, nor did she advise any of her supervisors that she felt unsafe

4 going into the freezer. Decou even candidly admitted:

I don’t think it was anybody’s intention of [sic] me to get hurt. That’s not an employer. That’s not a good manager, no. But the problem of the ice -- that it was not somebody’s intention for me to go in there and purposely slip, no, no. But the problem, everybody knew about it. So, like, what you said, intentional tort.

Decou testified that she began working at Target in October of 2002, before the store

actually opened for business at its new location on Ambassador Caffery in Lafayette.

At the time of her accident in May of 2003, Decou had been employed at Target for

approximately seven months, working three to four days a week, and going into and

out of the bakery’s freezer at least five times per day. When asked how often ice was

removed from the bakery freezer’s floor, Decou replied, “I’m trying to think how

often they would have an inspection. It was regularly. Probably once a month, if not

longer.” Decou also conceded that Target brought in maintenance personnel in

attempts to address the ice accumulation issues. However, Decou contends that the

ice was a regular, recurring problem of which she and other employees had

complained. Decou asserts that the existence of ice and Target’s failure to

successfully resolve the problem prior to her fall and injury constitutes an intentional

act for which she is entitled to damages pursuant to La.Civ.Code art. 23151. We

disagree.

1 Louisiana Civil Code Article 2315 provides:

A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

5 At the time of Decou’s accident, there had been no other injuries in Target’s

bakery freezer from people slipping and falling on ice. In fact, the only other Target

employee allegedly injured in a slip and fall accident in a freezer at Target was

Heather Hoffman (Hoffman). Unlike Decou however, the fall involving Hoffman

occurred in Target’s stock freezer located in the grocery department, not in Target’s

bakery freezer. Like Decou, Hoffman filed suit seeking to recover damages under the

intentional acts exception to the workers’ compensation statutes alleging that Target

failed to provide her with a safe working environment by allowing ice to dangerously

accumulate on the grocery department freezer’s floor. However, Hoffman’s

deposition testimony supports Target’s position that it neither intended for its

employees to get hurt nor did it place its employees in a work area where injuries

were substantially certain to occur.

In her deposition, Hoffman admitted that people, other employees, would leave

the door to the grocery department’s freezer open. Hoffman testified, “[t]here were

chunks of ice just here and there, everywhere. [] There was melted water from the

door being left open and there was condensation dripping from the ceiling, and there

was a huge fan. []” She further stated that “on the ceiling, there was a huge fan. And

whenever the door would be -- stay open, the fan would turn off which caused it to

drip on the floor and make huge piles of ice on the floor.” Finally, Hoffman

acknowledged that she, like Decou, also did not believe that anyone at Target

intended for her to get injured in the grocery department’s freezer and that she knew

of “maybe three times” when Target did make efforts to fix the freezer’s ice problems

by hiring maintenance personnel.

Also admitted into evidence were the depositions of Tyra Guilbeau (Guilbeau),

6 Kaili Capone Broussard (Broussard), and Renée Delahoussaye (Delahoussaye).

Guilbeau, a Bakery Team Leader at Target and the supervisor directly above both

Decou and Hoffman, testified that condensation occurred when the freezers’ doors

were left open and that, thereafter, the water would freeze. This same testimony was

elicited from both Broussard and Delahoussaye. Broussard was the Bakery Executive

Team Leader and the supervisor above Guilbeau at the time of Decou’s accident.

Delahoussaye described her job title with Target as “Executive Team Leader, Human

Resource,” whose position was above that of Broussard. In her deposition,

Delahoussaye also testified that a heating, ventilation, and air conditioning (HVAC)

firm, Hussman, was retained to address the freezers’ ice issues; however, the

diagnosis was that the ice was caused by condensation which occurred when the

freezers’ doors were left open. Thereafter, employees were advised of the cause of

the water/ice problems; were instructed to keep the doors closed; and when ice

formed, it was regularly removed.

In this case, Decou has failed to present any evidence to show that Target

consciously desired that she fall or that Target was substantially certain that Decou

would fall. We find that the testimony in the record indicates that Target’s

employees, not Target, could best address actions which caused the ice to form.

Further, the testimony corroborates Target’s contention that it neither intended for its

employees to get hurt nor did it place its employees in a work area where injuries

were substantially certain to occur. At most, the record before this court demonstrates

the exposure of workers to dangerous conditions.

In Reeves, 731 So.2d at 212, the Louisiana Supreme Court held “[b]elieving

that someone may, or even probably will, eventually get hurt if a workplace practice

7 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.”

In Reeves, 731 So.2d 208, the plaintiff was injured while manually moving a

sandblasting pot in the course and scope of his employment as a general laborer.

OSHA required that a sticker be placed on the sandblasting pot which read “DO NOT

MOVE MANUALLY,” and on previous job sites, the pot had been moved by a

forklift. However, at this particular job site, the plaintiff’s supervisor had requested

a forklift several times, but the employer had never provided one. The supervisor

testified that he feared someone would eventually get hurt moving the pot manually

and, for that reason, he sometimes moved the pot manually himself. Other employees

had moved the pot manually on numerous occasions without being injured, and the

plaintiff himself had done so several times without complaint and without ever having

any trouble. On the day of the accident, the supervisor directed the plaintiff to move

the sandblasting pot about forty to fifty feet and then, after the plaintiff had moved

it about halfway with no trouble, directed another employee to help him. The

supervisor testified that he believed the two employees could move the pot safely.

However, as they attempted to do so, it fell over onto the plaintiff and injured him.

In Reeves, the plaintiff filed suit against his employer alleging that his injuries

were caused by his employer’s intentional acts and, therefore, fell outside the realm

of workers’ compensation. After a jury trial, the jury found that the employer’s

actions were intentional and awarded him damages for pain and suffering, lost wages,

and past and future medical expenses. This court affirmed, finding the record

reflected the employer knew that the sandblasting pot could not be moved safely

without a tow motor, knew that moving it manually violated OSHA safety

8 regulations, and yet failed to provide the appropriate equipment.

The supreme court in Reeves rendered a reversal finding that the jury’s

conclusion that the employer’s conduct constituted an intentional act was not

reasonable in light of the record reviewed in its entirety and that there was no

evidence presented that the accident was substantially certain to occur. Accordingly,

the supreme court found that the jury had committed manifest error in determining

the employer’s conduct rose to the level of an intentional act for purposes of the

exception to the exclusive remedy of workers’ compensation, and the court of appeal

had erred in affirming the jury’s decision.

We find that the analysis of Reeves is applicable in the instant case and,

therefore, affirm the trial court’s judgment. The trial court was correct in its finding

that Decou failed to produce factual support to convince it that she can carry her

burden of proof at trial. Thus, there is no genuine issue of material fact, and summary

judgment is appropriate.

DECREE

For the foregoing reasons, the judgment of the trial court granting Target’s

motion for summary judgment is affirmed. Costs of this appeal are assessed against

Plaintiff/Appellant, Christin R. Decou.