STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-9
LOUIS GUILLORY, ET AL.
VERSUS
CITY OF LAKE CHARLES
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-1538 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Leonard Knapp, Jr. P. O. Box 1665 Lake Charles, LA 70602 Telephone: (337) 439-1700 COUNSEL FOR: Plaintiffs/Appellants - Louis Guillory, Dianna Simien, and Onzeletta Marks
Joseph Arthur Smith, III Adrienne Rachel Smith Law Firm 830 North Street Baton Rouge, LA 70802 Telephone: (225) 383-7716 COUNSEL FOR: Plaintiffs/Appellants - Louis Guillory, Dianna Simien, and Onzeletta Marks Christopher E. John Assistant City Attorney P. O. Box 900 Lake Charles, LA 70602-0900 Telephone: (337) 491-1523 COUNSEL FOR: Defendant/Appellee - City of Lake Charles THIBODEAUX, Chief Judge.
Plaintiffs/appellants and city bus drivers, Louis Guillory and Dianna
Simien, filed suit against the City of Lake Charles alleging that the City committed
an intentional act by requiring them to drive defective buses, which led to severe
injury. Plaintiffs contend that the City’s conduct invokes the intentional act
exception to the Workers’ Compensation Act (Act), La.R.S. 23:1032(B), and that
they are entitled to sue in district court. The City filed a Motion for Summary
Judgment in which it argued that the Plaintiffs were limited to a workers’
compensation remedy. The trial court granted the motion, and Plaintiffs appeal.
For the following reasons, we affirm.
I.
ISSUES
We will consider whether the trial court erred in granting summary
judgment to the City.
II.
FACTS AND PROCEDURAL HISTORY
Mr. Guillory and Ms. Simien, Plaintiffs, were city bus drivers for
many years, and had complained about the buses several times. According to
Plaintiffs, the seats and other parts of the buses were poorly maintained and
provided a bumpy and dangerous ride for the drivers. After years of experiencing
the jolting effects of the seats, Plaintiffs sustained severe back and neck injuries.
To date, Mr. Guillory has received $271,173.10 in wage and medical workers’
compensation benefits, and Ms. Simien has received $19,843.92. Plaintiffs allege
that the City knew their injuries were substantially certain and still refused to repair the buses. Plaintiffs filed suit in district court, asserting that the City’s conduct
falls under the intentional tort exception to the Act. The City’s Motion for
Summary Judgment contended that the Act provides Plaintiffs’ only remedy. The
trial court granted the motion, and Plaintiffs appeal.
III.
LAW AND DISCUSSION
Standard of Review
We review a grant of summary judgment de novo “using the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate, i.e., whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty
Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. If
the mover will not bear the burden of proof at trial on the matter, then he must
present evidence showing a lack of factual support for one or more elements
essential to the non-mover’s case. La.Civ.Code art. 966(C)(2); Simien v. Med.
Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-
1488 (La. 10/2/09), 18 So.3d 117. Once the mover has made a prima facie case
that the motion should be granted, the non-mover must then present evidence
sufficient to show a genuine issue of material fact. Id. If the non-mover fails to
present some evidence that he might be able to meet his burden of proof, the
motion should be granted. Id.
Discussion
Plaintiffs argue that the Act’s exclusivity requirement is inapplicable
because the City knew they would be injured if they continued to drive buses with
2 defective transmissions, shocks, and seats. We disagree. The Workers’
Compensation Act shields employers from civil liability stemming from employees
who are injured in the course and scope of their employment; the Act provides the
exclusive remedy to such employees. La.R.S. 23:1032(A). The exclusivity
provisions do not apply, however, if the injury resulted from an intentional act.
La.R.S. 23:1032(B). An intentional act in this context has the same meaning as an
intentional tort; that is, the person who acts either “(1) consciously desires the
physical result of his act[;] . . . or (2) knows that the result is substantially certain
to follow from his conduct, whatever his desire may be as to that result.” Bazley v.
Tortorich, 397 So.2d 475, 481 (La.1981). The Louisiana Supreme Court has
interpreted the intentional act exception narrowly. Substantial certainty “requires
more than a reasonable probability that an injury will occur;” specifically, it means
an injury is inevitable or incapable of failing. Reeves v. Structural Pres. Sys., 98-
1795, p. 9 (La. 3/12/99), 731 So.2d 208, 213 (quoting Jasmin v. HNV Central
Riverfront Corp., 94-1497 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, 312).
In the first instance, we find that even if all of Plaintiffs’ allegations
prove true, this conduct does not rise to the level of an intentional tort. The
intentional act exception is measured against an increasingly high standard. The
exception was found inapplicable in many cases analogous to this one, specifically
where an employer: failed to provide safety equipment; failed to remedy a
situation in which an electrical shock resulted every time someone touched a
specific door; maintained a forklift in an unsafe condition; and allowed workers to
use a dangerous machine with a high probability of injury. See Reeves, 731 So.2d
208; Castro v. Fred’s Painting, Inc., 96-405 (La.App. 5 Cir. 1/15/97), 688 So.2d
72, rev’d, 97-0374 (La. 4/4/97), 692 So.2d 408; Leger v. Hardy Rice Drier, Inc.,
3 93-1512 (La.App. 3 Cir. 6/1/94), 640 So.2d 650; Holliday v. B.E. & K. Const. Co.,
563 So.2d 1333 (La.App. 3 Cir. 1990).
Even if Plaintiffs’ supervisors had actual knowledge to a substantial
certainty that the faulty driver’s seats were not repaired and were continually
causing injury to the drivers, Plaintiffs would not be entitled to sue, according to
our jurisprudence. Out of an abundance of caution, however, we will address
Plaintiffs’ arguments.
Plaintiffs rely on the Louisiana First Circuit Court of Appeal’s
decision in Abney v. Exxon Corp., 98-911 (La.App. 1 Cir. 9/24/99), 755 So.2d 283,
writ denied, 99-3053 (La. 1/14/00), 753 So.2d 216 to support their position. In that
case, the plaintiffs were hired to perform welding and gouging on a fractionation
tower with poor ventilation and no safety equipment. The plaintiffs were
constantly exposed to known carcinogens and experienced nose bleeds and other
symptoms every time they went to work. Id. This exposure forced the plaintiffs to
quit their jobs after only several weeks. That court held that when an employer
knows of the risks and repeatedly sends an employee back to work without safety
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-9
LOUIS GUILLORY, ET AL.
VERSUS
CITY OF LAKE CHARLES
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2007-1538 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Leonard Knapp, Jr. P. O. Box 1665 Lake Charles, LA 70602 Telephone: (337) 439-1700 COUNSEL FOR: Plaintiffs/Appellants - Louis Guillory, Dianna Simien, and Onzeletta Marks
Joseph Arthur Smith, III Adrienne Rachel Smith Law Firm 830 North Street Baton Rouge, LA 70802 Telephone: (225) 383-7716 COUNSEL FOR: Plaintiffs/Appellants - Louis Guillory, Dianna Simien, and Onzeletta Marks Christopher E. John Assistant City Attorney P. O. Box 900 Lake Charles, LA 70602-0900 Telephone: (337) 491-1523 COUNSEL FOR: Defendant/Appellee - City of Lake Charles THIBODEAUX, Chief Judge.
Plaintiffs/appellants and city bus drivers, Louis Guillory and Dianna
Simien, filed suit against the City of Lake Charles alleging that the City committed
an intentional act by requiring them to drive defective buses, which led to severe
injury. Plaintiffs contend that the City’s conduct invokes the intentional act
exception to the Workers’ Compensation Act (Act), La.R.S. 23:1032(B), and that
they are entitled to sue in district court. The City filed a Motion for Summary
Judgment in which it argued that the Plaintiffs were limited to a workers’
compensation remedy. The trial court granted the motion, and Plaintiffs appeal.
For the following reasons, we affirm.
I.
ISSUES
We will consider whether the trial court erred in granting summary
judgment to the City.
II.
FACTS AND PROCEDURAL HISTORY
Mr. Guillory and Ms. Simien, Plaintiffs, were city bus drivers for
many years, and had complained about the buses several times. According to
Plaintiffs, the seats and other parts of the buses were poorly maintained and
provided a bumpy and dangerous ride for the drivers. After years of experiencing
the jolting effects of the seats, Plaintiffs sustained severe back and neck injuries.
To date, Mr. Guillory has received $271,173.10 in wage and medical workers’
compensation benefits, and Ms. Simien has received $19,843.92. Plaintiffs allege
that the City knew their injuries were substantially certain and still refused to repair the buses. Plaintiffs filed suit in district court, asserting that the City’s conduct
falls under the intentional tort exception to the Act. The City’s Motion for
Summary Judgment contended that the Act provides Plaintiffs’ only remedy. The
trial court granted the motion, and Plaintiffs appeal.
III.
LAW AND DISCUSSION
Standard of Review
We review a grant of summary judgment de novo “using the same
criteria that govern the trial court’s consideration of whether summary judgment is
appropriate, i.e., whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty
Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. If
the mover will not bear the burden of proof at trial on the matter, then he must
present evidence showing a lack of factual support for one or more elements
essential to the non-mover’s case. La.Civ.Code art. 966(C)(2); Simien v. Med.
Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-
1488 (La. 10/2/09), 18 So.3d 117. Once the mover has made a prima facie case
that the motion should be granted, the non-mover must then present evidence
sufficient to show a genuine issue of material fact. Id. If the non-mover fails to
present some evidence that he might be able to meet his burden of proof, the
motion should be granted. Id.
Discussion
Plaintiffs argue that the Act’s exclusivity requirement is inapplicable
because the City knew they would be injured if they continued to drive buses with
2 defective transmissions, shocks, and seats. We disagree. The Workers’
Compensation Act shields employers from civil liability stemming from employees
who are injured in the course and scope of their employment; the Act provides the
exclusive remedy to such employees. La.R.S. 23:1032(A). The exclusivity
provisions do not apply, however, if the injury resulted from an intentional act.
La.R.S. 23:1032(B). An intentional act in this context has the same meaning as an
intentional tort; that is, the person who acts either “(1) consciously desires the
physical result of his act[;] . . . or (2) knows that the result is substantially certain
to follow from his conduct, whatever his desire may be as to that result.” Bazley v.
Tortorich, 397 So.2d 475, 481 (La.1981). The Louisiana Supreme Court has
interpreted the intentional act exception narrowly. Substantial certainty “requires
more than a reasonable probability that an injury will occur;” specifically, it means
an injury is inevitable or incapable of failing. Reeves v. Structural Pres. Sys., 98-
1795, p. 9 (La. 3/12/99), 731 So.2d 208, 213 (quoting Jasmin v. HNV Central
Riverfront Corp., 94-1497 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, 312).
In the first instance, we find that even if all of Plaintiffs’ allegations
prove true, this conduct does not rise to the level of an intentional tort. The
intentional act exception is measured against an increasingly high standard. The
exception was found inapplicable in many cases analogous to this one, specifically
where an employer: failed to provide safety equipment; failed to remedy a
situation in which an electrical shock resulted every time someone touched a
specific door; maintained a forklift in an unsafe condition; and allowed workers to
use a dangerous machine with a high probability of injury. See Reeves, 731 So.2d
208; Castro v. Fred’s Painting, Inc., 96-405 (La.App. 5 Cir. 1/15/97), 688 So.2d
72, rev’d, 97-0374 (La. 4/4/97), 692 So.2d 408; Leger v. Hardy Rice Drier, Inc.,
3 93-1512 (La.App. 3 Cir. 6/1/94), 640 So.2d 650; Holliday v. B.E. & K. Const. Co.,
563 So.2d 1333 (La.App. 3 Cir. 1990).
Even if Plaintiffs’ supervisors had actual knowledge to a substantial
certainty that the faulty driver’s seats were not repaired and were continually
causing injury to the drivers, Plaintiffs would not be entitled to sue, according to
our jurisprudence. Out of an abundance of caution, however, we will address
Plaintiffs’ arguments.
Plaintiffs rely on the Louisiana First Circuit Court of Appeal’s
decision in Abney v. Exxon Corp., 98-911 (La.App. 1 Cir. 9/24/99), 755 So.2d 283,
writ denied, 99-3053 (La. 1/14/00), 753 So.2d 216 to support their position. In that
case, the plaintiffs were hired to perform welding and gouging on a fractionation
tower with poor ventilation and no safety equipment. The plaintiffs were
constantly exposed to known carcinogens and experienced nose bleeds and other
symptoms every time they went to work. Id. This exposure forced the plaintiffs to
quit their jobs after only several weeks. That court held that when an employer
knows of the risks and repeatedly sends an employee back to work without safety
equipment or remedial measures being taken, the intentional act exception applies.
Id.
Abney is inapplicable to the instant case. In Abney, the employer
refused to remedy the hazardous situation and refused to implement specific
recommended safety measures. In this case, on the other hand, Plaintiffs admit
that their supervisors submitted the buses for repairs whenever the drivers
complained. In fact, the City has presented dozens of work orders indicating that
Plaintiffs’ supervisors went through the appropriate channels to ensure the buses
were regularly maintained. The City clearly attempted remedial measures, even if
4 those measures were ultimately unsuccessful. As the court in Abney explained,
“remedial measures attempted by the employer negate any intent on its part that an
injury would occur.” Id. at 288-89. Failing to follow up on requested repairs does
not rise to the level of an intentional tort.
Plaintiffs point to their supervisors’ knowledge that they had
experienced back and neck injuries in the past as evidence of intent. Although
prior injury is a factor to consider in the substantial certainty test, it is not
dispositive. Further, “[b]elieving 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.” Reeves, 731 So.2d at 212. The City’s knowledge of Plaintiffs’
injuries did not require it to do anything more than submit the buses for repair and
maintenance, which it did.
The City did not commit an intentional act by failing to follow up on
the buses’ maintenance and repairs. We find there is no genuine issue of material
fact and Plaintiffs’ claims fall exclusively within the purview of the Workers’
Compensation Act.
IV.
CONCLUSION
For the reasons above, we affirm the trial court’s grant of summary
judgment to the City of Lake Charles. Costs of this appeal are assessed against
Appellants, Louis Guillory and Dianna Simien.