Fabre v. Travelers Insurance Company

286 So. 2d 459
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1974
Docket9555
StatusPublished
Cited by14 cases

This text of 286 So. 2d 459 (Fabre v. Travelers Insurance Company) 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
Fabre v. Travelers Insurance Company, 286 So. 2d 459 (La. Ct. App. 1974).

Opinion

286 So.2d 459 (1973)

Louis A. FABRE, Plaintiff-Appellant,
v.
The TRAVELERS INSURANCE COMPANY and/or the Travelers Indemnity Company, et al., Defendants-Appellees.

No. 9555.

Court of Appeal of Louisiana, First Circuit.

November 12, 1973.
Rehearing Denied January 4, 1974.
Writ Refused February 1, 1974.

*461 Anthony J. Clesi, Jr., Baton Rouge, for plaintiff-appellant.

Eugene R. Groves, Baton Rouge, for Travelers Ins. Co.

Frank A. Fertitta, Baton Rouge, for Intervenor.

Before SARTAIN, TUCKER and WATSON, JJ.

SARTAIN, Judge.

This suit arose out of an accident which occurred on October 7, 1969 at the point on the Shada Avenue extension where the roadway crosses over Monte Sano Bayou in East Baton Rouge Parish. At approximately 6:00 A.M. on the morning in question plaintiff was leaving his work at the Allied Chemical Corporation's North Works Plant in Baton Rouge when his auto suddenly plunged into a hole in the roadway striking the opposite side of the hole and causing the injuries for which plaintiff seeks recovery in this tort suit.

Plaintiff was employed by Allied Chemical Corporation (Allied) at the time of the accident. He had just finished his shift at Allied's North Works Plant and was proceeding in his automobile for home when the accident occurred. Allied's North Works Plant is located some distance from the Airline Highway, the main public artery in the area, and access to the plant for the workers is provided by the extension of Shada Avenue on land owned or leased by Allied. On the night preceding the accident the Baton Rouge area experienced a rainfall of some 4.5 inches. Apparently this rainfall caused the supporting dirt fill of the Shada Avenue extension at the point of the accident to be washed out by Monte Sano Bayou resulting in the large hole into which plaintiff's vehicle fell. Plaintiff was driving in the pre-dawn darkness and rain and thus did not see the washout until it was too late to avoid striking the hole.

Plaintiff was able to get out of his auto before the entire support structure under the roadway, including a metal culvert some thirteen feet in diameter and one hundred feet long, was washed away resulting in the inundation of his vehicle. Plaintiff suffered shock and bruises from the accident and missed some eighty-four hours from his job. He was paid workmen's compensation and medical expenses by Allied's workmen's compensation insurer for this period.

Plaintiff filed this tort suit seeking recovery of damages for his various physical injuries against Allied, its insurer, The Travelers Insurance Company, and six officers and employees of Allied. Plaintiff alleged that Allied maintained the roadway. He also alleged that Allied and its officers had constructive and actual knowledge that the roadway was in danger of collapsing and were negligent in failing to correct this condition.

*462 Following a trial on the merits, the district court dismissed plaintiff's suit against Allied and its insurer on the grounds that plaintiff's only cause of action against Allied and its insurer must lie under the Workmen's Compensation Act and not in tort. The trial court also found that plaintiff had failed to prove by a preponderance of the evidence any negligence on the part of the individual defendants.

From this judgment plaintiff has taken this appeal. Plaintiff asserts that the trial court erred (1) in denying recovery in tort against Allied and its insurer, (2) in denying recovery against the individual executive officers named as defendants, and (3) in failing to apply the doctrine of res ipsa loquitur to the facts of this case.

PLAINTIFF'S CLAIM AGAINST ALLIED

Plaintiff contends that the trial court erred in holding that the accident occurred during the course and scope of plaintiff's employment and as such his exclusive remedy against Allied would lie under our workmen's compensation law. L.R.S. 23:1032. Our review of this record convinces us of the correctness of the trial court's determination of this issue and we, therefore, quote with approval that portion of his written reasons for judgment concerning this issue:

"Because of Mr. Fabre's status as an employee of Allied Chemical, and because he has brought suit against this defendant in tort only, it is incumbent upon this Court to determine whether the Louisiana Workmen's Compensation Act is applicable. This is because of LSA R.S. 23:1032 which makes the Workmen's Compensation Act the sole remedy for an employee's injuries, where the circumstances surrounding the injuries show the applicability of this Act. If it is determined that the Act applies to Mr. Fabre, this action must be dismissed against Allied and its insurer.
"In determining the applicability of the Compensation Act, the following principle must be kept in mind:
"`The liberal Construction of the Workmen's Compensation Act required to accomplish its humane purpose by including all workmen reasonably afforded its protection must equally be applied when an injured person seeks exclusion from the Act in order to seek damages in tort. Spanja vs. Thibodeaux [Thibodaux] Boiler Works [La.App.], 2 So.2d 668. Schmolke vs. Krauss Company, Ltd. [La.App.], 217 So.2d 789, at 791. (Emphasis added) See also, Kenner vs. Harenco [La. App.], 161 So.2d 142, and Pinchera vs. Great Atlantic and Pacific Tea Co. [La.App.], 206 So.2d 793.'"
"In applying this principle, every reasonable manner of including Mr. Fabre under the Act must be explored, and if any be found he will be held to that exclusive remedy.
"The basic requirements for coverage under the Act are as follows. First, an employer-employee relationship must exist; second, the employment must be hazardous, as defined by the legislation and jurisprudence; and finally it must appear that coverage has not been precluded by agreement or employee choice. It seems obvious that these requirements have been satisfied in the instant case, and neither party has contended otherwise. The bone of contention here concerns two other requirements of the Act. L.S.A. R.S. 23:1031 requires that the injury complained of arise out of and in the course of the employment.
"Generally, this means that the injury must occur during the hours of employment and be the result of a risk incurred because of the employment. In the instant case, Mr. Fabre had just finished his shift and had departed, on his way home, when the accident occurred. This would seem to meet the statutory requirement *463 that the injury occur during the course of the employment, because our Supreme Court has indicated that for purposes of the Act, the working day, or hours of employment, includes a reasonable time to leave. Walker vs. Lykes Brothers-Ripley S. S. Co. [La. App.], 166 So. 624.
"Furthermore, the accident occurred on the plant premises, or near enough thereto to warrant inclusion under the jurisprudential `threshhold' doctrine. This doctrine requires that the employee be subjected to a risk not common to the average traveler and that the risk exist in the immediate adjacent area. There was testimony that indicated ownership of the road by Allied, and that the road was contiguous with the plant proper. However, were this not the case, the risk was in the immediate adjacent area and it was such a risk that was beyond that encountered by the average traveler. Mr.

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Bluebook (online)
286 So. 2d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fabre-v-travelers-insurance-company-lactapp-1974.