Judgment rendered March 30, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,252-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SARAH EILTS Plaintiff-Appellant
Versus
TWENTIETH CENTURY FOX Defendants-Appellees FILM CORPORATION, BREAKOUT KINGS PRODUCTION, LLC, AND AARON NELSON
**** Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 78,009
Honorable Amy Burford McCartney, Judge
MANNO LAW FIRM, LLC Counsel for Appellant, By: Mark Kenneth Manno Sarah Eilts
McCRANIE, SISTRUNK, ANZELMO, Counsel for Appellees, HARDY, McDANIEL & WELCH, LLC Twentieth Century Fox By: Heather N. Shockley Film Corporation and Breakout Kings Production, LLC
Before THOMPSON, ROBINSON, and O’CALLAGHAN (Pro Tempore), JJ. O’CALLAGHAN (Pro Tempore), J.
In this tort suit, the plaintiff, Sarah Eilts, appeals from a trial court
ruling which granted summary judgment in favor of the defendants,
Breakout Kings Productions, LLC (“Breakout Kings”), and Twentieth
Century Fox Film Corporation (“TCFFC”). Breakout Kings and TCFFC
answered the appeal, contending that the trial court erred in denying their
motion to strike the plaintiff’s untimely opposition memorandum. We
reverse the trial court’s denial of the motion to strike and affirm summary
judgment in favor of the defendants.
FACTS AND PROCEDURAL HISTORY
Eilts worked on the television show “Salem” in several capacities,
including as a “stand-in” and a stunt performer.1 On December 22, 2016,
she filed a petition for damages in which she claimed that she was injured by
Aaron Nelson when he threw her to the ground during the filming of a scene
on January 29, 2016. She alleged that his conduct was an intentional tort
and named him as a defendant, along with Breakout Kings and TCFFC,
which she asserted produced or created “Salem.” As a result of Nelson’s
actions, she claimed to have sustained injuries to her right upper extremity,
right shoulder, and cervical spine. She further alleged that, at the time of the
incident, Nelson was in the course and scope of his employment with
Breakout Kings and/or TCFFC or, alternatively, he was an officer, agent,
and/or assign of them, thus making them vicariously liable for his actions.
1 “Salem” was a Gothic horror television series which filmed in northwest Louisiana from about 2014 to 2016 with a cast that included Shane West, Janet Montgomery, Tamzin Merchant, Xander Berkley, and Lucy Lawless. The incident at issue occurred at a location near the village of Grand Cane in DeSoto Parish. On January 19, 2017, Breakout Kings and TCFFC answered the
petition, generally denying the allegations. 2 They specifically pled tort
immunity and the exclusive remedy provisions of the Louisiana Workers’
Compensation Act as a complete and absolute bar to the recovery sought by
Eilts. In the alternative, they contended that, if Nelson’s actions were
intentional, they were outside the course and scope of his employment.
They also pled such other defenses as comparative fault and assumption of
the risk and requested a jury trial.
On February 1, 2021, Breakout Kings and TCFFC filed a motion for
summary judgment in which they asserted that Breakout Kings was entitled
to tort immunity under the Louisiana Workers’ Compensation Act due to its
status as Eilts’ employer at the time of the incident. As to the intentional act
exception in workers’ compensation, they argued that it required proof that
Breakout Kings or its employee who committed the intentional act (1)
consciously desired the physical result of his act or (2) knew that the result
was substantially certain to follow from his conduct. They also contended
that TCFFC did not employ Eilts or have a role in the production of
“Salem”; its only link was issuing royalty payments to actors like Eilts for
subsequent airings of the show that generated revenue. In support of their
motion, they submitted the following documents: the affidavit of Judd Rea,
a producer for Breakout Kings; the petition for damages; Eilts’ deposition;
and the 1442 corporate representative deposition by Craig Davidson, a
Disney executive.
2 Nelson has never been served and has not made any appearance in the lawsuit. 2 In his affidavit, Rea stated that on January 29, 2016, Eilts was
employed by Breakout Kings as a stunt performer/actor in “Salem” and she
was allegedly injured in the course and scope of her employment while
filming a scene. He stated that on January 20, 2016, she signed an
employment contract with Breakout Kings’ parent company to work as a
“Stunt Refugee Woman” in the first episode of the third season of “Salem.” 3
As a result of her alleged injuries, she made a workers’ compensation claim
with Breakout Kings’ workers’ compensation insurer and received medical
benefits and indemnity payments. According to Rea’s affidavit, the insurer
was still paying indemnity payments to Eilts. He stated that Breakout Kings
did not intend or desire for Eilts to be injured while working on “Salem.”
Rea further stated that there was no corporate relationship between TCFFC
and Breakout Kings at the time of the incident, except 21st Century Fox
America, Inc., ultimately owned both entities, and that TCFFC had no role
in the production of “Salem.” While the initial workers’ compensation
documentation erroneously identified Twentieth Century Fox TV as Eilts’
employer, he stated that her claim had since been redesignated internally.
In her deposition, Eilts indicated that she worked on “Salem” for two
and a half to three years. She was “uncertain” as to whether she had signed
a contract to work on “Salem.” She had worked in several positions,
including a speaking actor, a body double, a stand-in, and a stunt performer.
She admitted making a workers’ compensation claim for the incident in
question. She was “uncertain” as to whether they had paid her medical
expenses but conceded that she was receiving about $500 in income per
3 However, a copy of this contract shown to Davidson during his deposition was dated “1/29/16.” 3 week. As to the actual incident, she stated that she was initially standing in
for an actor and then she was paid as a stunt performer. In what was
apparently a rape scene, she was thrown to the ground violently enough to
separate her shoulder. She asserted that she was upgraded to a stunt position
after she got “beat up.” She finally admitted that she was told, in relation to
the scene being filmed, that there was going to be a raid on the town and she
would be “crawling away.” She further admitted that she was thrown down
more than once while filming the scene. She was “not certain” when she got
“badly injured.” She stated that she went to an urgent care facility the next
day for treatment.
When questioned about evidence pertaining to the defendants’
intentions, Eilts testified as follows:
Q: Do you believe that Aaron Nelson intended to hurt you? A: I can’t say. Q: You don’t think he did? A: I--I’m un--I--I don’t know. Q: Okay. Do you have any evidence that he intended to hurt you? A: Not-- not that I can think of, other than the fact that I’m hurt. ... Q: Do you have any evidence that Twentieth Century Fox intended for you to be injured? A: Not to my knowledge. Q. Do you have any evidence that Breakout Kings intended for you to be (sic) sustain injury? A: Not to my knowledge.
In his deposition, Davidson testified that he was currently the HR
business partner overseeing the Disney TV studios and that in 2016 he had
been the director of HR operations out of New York for the Walt Disney
Company. He stated that Breakout Kings was a subsidiary of Fox 21, which
was acquired by Disney in 2019. According to Davidson’s information,
both Eilts and Nelson were general extras and Eilts was on the call sheet as a 4 “refugee stuntwoman.” Eilts was employed by Breakout Kings. Davidson
stated he was unable to locate any contact information for Nelson, who was
apparently provided to “Salem” by an entity called Entertainment Partners, a
third-party staffing agency that supplied mainly general extras to
productions. While they could not find any pay stubs for Nelson to confirm
his employment with Entertainment Partners, a “Salem – Season 3” detailed
earnings report for Nelson showed he was paid general extra wages on the
date in question. According to Davidson, a detailed earnings report just
showed what an individual was paid and for which production the show was
being produced; it was the only document they were able to locate pertaining
to Nelson.
Davidson was shown numerous documents by plaintiff’s counsel. He
agreed that one document from Legacy Casting listed Eilts as “PD
REFUGEE WOMAN” and Nelson as “PD BRAVE.” Both a handwritten
cast sheet and a typed “approved” production report for January 29, 2016,
showed Eilts as “STUNT REFUGEE WOMAN” but did not list Nelson.
Other documents included a pay stub for Eilts on 1-29-16 and a 2016 W-2
for Eilts from Breakout Kings. There were copies of an employer report of
injury/illness, a Breakout Kings incident report, a supervisor investigation
report, and an employer’s report of occupational injury or illness; however,
Davidson had no knowledge as to who filled out these documents.4
The motion for summary judgment was set for April 1, 2021. On
March 26, 2021, Eilts filed a memorandum in opposition to the motion for
4 The contents of these reports were very similar, and they utilized some of the same descriptions. They identified Eilts as a “stunt performer” whose right shoulder was bruised while “[p]erforming stunt where she was thrown to the ground and choked.” They also stated that the injury “[o]ccurred while continuously performing stunt” or that the incident happened while “[p]erforming stunt repeatedly.” 5 summary judgment. On March 29, 2021, Breakout Kings and TCFFC filed
a reply memorandum to the opposition and a motion to strike the opposition.
They contended that Eilts failed to comply with the requirement of La.
C.C.P. art. 966(B) that an opposition be filed and served not less than 15
days prior to the hearing on the motion for summary judgment.
At the hearing on April 1, 2021, counsel for Eilts conceded that the
opposition was not filed timely and that there was no reason for its tardiness.
The trial court took that issue under advisement and allowed arguments to
proceed. Counsel for the defendants argued that TCFFC should be
dismissed because it had no role in the production of the show or any
oversight over the filmed scenes, and it was not Eilts’ employer. As to
Breakout Kings, counsel for the defendants argued that it was Eilts’
employer and that her exclusive remedy against it was in workers’
compensation. As to the intentional act exclusion, the defendants pointed to
Eilts’ deposition testimony that she had no evidence that Nelson intended to
hurt her other than the fact that she was hurt. Counsel for Eilts admitted,
while not stipulating, that it had no argument against granting summary
judgment in favor of TCFFC. As to Breakout Kings, Eilts’ counsel
maintained that it was liable for a battery committed upon Eilts by a
coworker and that summary judgment was not appropriate because the intent
of the tortfeasor was an issue. On rebuttal, counsel for the defendants
argued that Eilts could not prove the required showing of intent. Also, the
evidence indicated that the scene was filmed multiple times and that, instead
of walking away after the first time, she consented to the alleged battery.
At the conclusion of the hearing, the trial court ruled that it did not
believe that it was required to strike the late opposition and allowed it. 6 However, the trial court concluded that summary judgment was appropriate
as to both defendants. As to TCFFC, no opposition had been provided. As
to Breakout Kings, the trial court granted the motion because the injury was
not substantially certain to occur. Judgment in conformity with the trial
court’s rulings was signed on May 6, 2021, dismissing the matter in its
entirety with prejudice.
Eilts appealed. However, in her brief to this court, she stated that she
was not appealing the trial court’s dismissal of TCFFC.
ANSWER TO THE APPEAL
The defendants answered the appeal, challenging the trial court’s
failure to strike Eilts’ late opposition to the motion for summary judgment.
In their brief, the defendants mentioned the then-pending case of Auricchio
v. Harriston, 20-01167 (La. 3/16/21), 312 So. 3d 589, wherein the Louisiana
Supreme Court granted a writ to resolve a split between the courts of appeal
relative to the interpretation of La. C.C.P. art. 966(B)(2). After the filing of
the parties’ briefs, the supreme court rendered Auricchio v. Harriston, 20-
01167 (La. 12/10/21), 332 So. 3d 660, in which it ruled that, in the absence
of consent by the parties, a trial court has no discretion to extend the 15-day
deadline for filing an opposition to summary judgment. Accordingly, we
reverse the trial court’s denial of the defendants’ motion to strike the
untimely opposition, and we will conduct our de novo review of the motion
for summary judgment without the late-filed opposition.5
5 Appellate courts review motions for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So. 3d 791; Shields v. McInnis Bros. Constr., Inc., 53,581 (La. App. 2 Cir. 3/3/21), 314 So. 3d 1079. 7 INTENTIONAL ACT EXCLUSION
As mentioned above, Eilts does not contest the trial court’s dismissal
of TCFFC as a defendant. As to Breakout Kings, she argues that the trial
court erred in finding that the tort committed by Nelson was not intentional.
While admitting in her brief that she voluntarily appeared as a stunt
performer on the day of the incident, she insists that she did not consent to a
battery and that she was unaware that she was “going to be injured or thrown
aggressively.”
The defendants assert that, as an employee of Breakout Kings, Eilts’
exclusive remedy was in workers’ compensation. They maintain that, after
Breakout Kings demonstrated that Eilts was allegedly injured in the course
and scope of her employment, the burden shifted to her to prove the
applicability of the intentional act exception. Under the jurisprudence, in
order to qualify under that exception, it was Ms. Eilts’ burden to
demonstrate that Nelson either consciously desired the physical result of his
conduct or knew that the result was substantially certain to follow from his
conduct. Because she failed to show that Nelson intended to injure her or
that her alleged injuries were substantially certain to occur, she failed to
carry her burden of proof. After conducting our de novo review, we agree
with the defendants.
Law
An employee injured in the course of his employment is generally not
allowed to recover tort damages against his employer. Gardner v. Craft,
48,861 (La. App. 2 Cir. 3/5/14), 137 So. 3d 69, writ denied, 14-0711 (La.
5/16/14), 139 So. 3d 1029; Berry v. Valley Gin, Inc., 44,433 (La. App. 2 Cir.
7/1/09), 16 So. 3d 494. Rather, the employee’s exclusive remedy for 8 workplace injuries is workers’ compensation, unless the employee’s injuries
are the result of an intentional act. La. R.S. 23:1032(A) and (B). The
intentional act exception to workers’ compensation is narrowly construed.
Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So. 2d 208;
Gardner v. Craft, supra.
Establishing that a workplace injury resulted from an intentional act
requires proof that the person who acts either (1) consciously desired the
physical result of his act, whatever the likelihood of that result happening
because of his conduct, or (2) knew that the result was substantially certain
to follow from his conduct, whatever his desire may have been as to that
result. Carrier v. Grey Wolf Drilling Co., 00-1335 (La. 1/17/01), 776 So. 2d
439; Reeves v. Structural Pres. Sys., supra; Bazley v. Tortorich, 397 So. 2d
475 (La. 1981); Gardner v. Craft, supra. “Substantially certain to follow”
requires more than a reasonable probability that an injury will occur and
“certain” has been defined to mean “inevitable,” or “incapable of failing.”
Stanley v. Airgas-Sw., Inc., 15-0274 (La. 4/24/15), 171 So. 3d 915; Reeves v.
Structural Pres. Sys., supra; Simoneaux v. Excel Group, L.L.C., 06-1050
(La. 9/1/06), 936 So. 2d 1246; Crockett v. Therral Story Well Serv., Inc.,
45,716 (La. App. 2 Cir. 1/5/11), 57 So. 3d 355, writ not cons., 11-0263 (La.
3/25/11), 61 So. 3d 650.
A motion for summary judgment is the proper procedural tool to
penetrate a plaintiff’s general allegation that an injury resulted from an
intentional tort. Gardner v. Craft, supra. The burden of proof rests with the
mover. Nevertheless, if the mover will not bear the burden of proof at trial
on the issue that is before the court on the motion for summary judgment,
the mover’s burden on the motion does not require him to negate all 9 essential elements of the adverse party’s claim, action, or defense, but rather
to point out to the court the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense. The
burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is
not entitled to judgment as a matter of law. La. C.C.P. art. 966 (D)(1). See
Carrier v. Grey Wolf Drilling Co., supra.
Discussion
Eilts claims that, if Nelson committed a battery against her, Breakout
Kings is liable for the consequences of that intentional act, regardless of the
ultimate intent of Nelson or Breakout Kings. In support of her argument,
Eilts relies upon two Louisiana Supreme Court cases, Caudle v. Betts, 512
So. 2d 389 (La. 1987), and Cole v. State Dep’t of Pub. Safety & Corr., 01-
2123 (La. 9/4/02), 825 So. 2d 1134. In Caudle, supra, the supreme court
considered the intentional act exception in the context of the intentional tort
of battery. It concluded that an electrical shock from an electric automobile
condenser administered by the company CEO to an employee at a Christmas
party as a “joke” (which caused nerve damage) was an intentional tort
outside the remedy of workers’ compensation. The supreme court stated
that, when an employee seeks to recover from his employer for an
intentional tort, a court must apply the legal precepts of general tort law
related to the particular intentional tort alleged in order to determine whether
he has proved his cause of action and damages recoverable thereunder. It
defined battery as “[a] harmful or offensive contact with a person, resulting
from an act intended to cause the plaintiff to suffer such a contact.” It found
it was undisputed that, when the CEO shocked Caudle, he intended the 10 contact to be offensive and at least slightly painful or harmful. The fact that
he did so as a practical joke and did not intend to inflict actual damage did
not render him immune from liability. The supreme court stated that “[t]he
intention need not be malicious nor need it be an intention to inflict actual
damage. It is sufficient if the actor intends to inflict either a harmful or
offensive contact without the other’s consent.”
In the Cole case, a correctional officer was injured when struck full
force with unpadded batons while participating in a simulated prison riot
which deteriorated into a “free-for-all.” The supreme court allowed Cole,
who relied upon the Caudle case, to recover damages for an intentional tort,
holding that the force he received was unnecessary to accomplish the goal of
the training exercise. In so ruling, the supreme court found that striking
someone at full force with an unpadded baton was “a harmful or offensive
contact intending that person to suffer such a contact.” While discussing the
intentional act exception, the supreme court acknowledged the Bazley two-
prong definition of intent (“consciously desires the physical result of his act”
or “knows that the result is substantially certain to follow from his conduct”)
and the narrow construction afforded to that exception. As to the argument
that Cole consented to the battery, the supreme court held that a full force
altercation was not anticipated and, to the extent that he initially consented
to harmful touching during the training exercise, his consent was vitiated by
the unnecessary and unanticipated force used.
In their brief, the defendants cite several appellate court cases in
which employees sued for damages for workplace batteries. Like Eilts, the
plaintiffs in these cases relied upon Caudle, supra, and in each case it was
found to be factually distinguishable. In Guarino v. Kaiser Aluminum & 11 Chem., 97-926 (La. App. 5 Cir. 5/13/98), 712 So. 2d 989, writ denied, 98-
1893 (La. 10/30/98), 727 So. 2d 1165, cert. denied, 526 U.S. 1039, 119
S. Ct. 1334, 143 L. Ed. 2d 499 (1999), a foreman grabbed a tool from an
employee’s hand, causing injury to employee’s rotator cuff. The appellate
court vacated a jury verdict in the employee’s favor, finding that neither
prong of the Bazley intentional tort analysis was met. In Chabert v. Mothe
Life Ins. Co., 04-590 (La. App. 5 Cir. 11/30/04), 890 So. 2d 621, an
employee was knocked down when her coworker either bumped or pushed
her. The appellate court affirmed summary judgment in favor of the
employer and coworker because it was unable to disagree with the trial
court’s conclusion that, even assuming the “bump” was intentional, there
was no evidence that the coworker was substantially certain Chabert would
fall or be injured as a result of his conduct. In Young v. Doe, 11-49 (La.
App. 5 Cir. 5/24/11), 67 So. 3d 632, a waitress hit a restaurant cook in the
head with a plate. The appellate court affirmed summary judgment in favor
of the defendants after considering the deposition testimony of the waitress
that she did not intend to hurt Young when she touched him with the plate
but expected him to laugh, along with Young’s deposition testimony that he
did not think the waitress intended to hurt him.6
In the instant case, Breakout Kings, as the movant, bore the initial
burden on summary judgment. However, since it would not bear the burden
6 See also Chevis v. Rivera, 2021-0124 (La. App. 1 Cir. 9/24/21), 329 So. 3d 831, writ denied, 21-01546 (La. 12/21/21), 330 So. 3d 317, in which the appellate court reversed a partial summary judgment in favor of a worker due to a genuine issue of material fact as to whether a supervisor’s action in touching a board to the worker’s hardhat constituted an intentional act. The worker cited the Cole and Caudle cases; the appellate court found the factual scenarios in both of them to be clearly distinguishable from the case before it. 12 of proof at trial on the issue before the court, its burden on summary
judgment was only to show an absence of factual support for one of more
essential elements of Eilts’ claim. Breakout Kings established that it
employed Eilts on the day of the incident and that she was injured on the
job. As an employee of Breakout Kings, Eilts was then required to prove
that she fell under the intentional act exception to the workers’ compensation
act. She asserted that Nelson committed a battery upon her, i.e., he intended
to inflict either a harmful or offensive contact upon her without her consent.
According to the jurisprudence, she had to demonstrate that Breakout Kings
or Nelson either consciously desired the physical result of Nelson’s act or
knew that the result was substantially certain to follow from Nelson’s
conduct.
By her own admission, Eilts voluntarily appeared as a stunt performer
on the day of the incident, repeatedly filmed a scene in which she and
Nelson enacted a physical assault, and failed to voice any concern for her
safety to her employer during the repeated performances of the stunt. Eilts’
frequently vague deposition testimony is woefully deficient in providing
information supporting her case. As recounted supra, when asked during
her deposition if she believed that Nelson intended to hurt her, Eilts
responded, “I can’t say. . . I don’t know.” When asked if she had any
evidence he intended to hurt her, she said, “Not – not that I can think of,
other than the fact that I’m hurt.” When asked if she had evidence that
Breakout Kings intended for her to be injured, she replied, “Not to my
knowledge.”
Based upon this record, we conclude that Eilts has failed to present
any factual support to establish that she would be able to satisfy her 13 evidentiary burden at trial that Nelson or Breakout Kings intended to inflict
either a harmful or offensive contact upon her without her consent. She has
not demonstrated that Breakout Kings or Nelson either consciously desired
the physical result of Nelson’s act or knew that the result was substantially
certain to follow from Nelson’s conduct. Accordingly, there is no genuine
issue of material fact, and summary judgment is proper in the instant case.
CONCLUSION
We reverse the trial court’s denial of the defendants’ motion to strike
the late opposition. The trial court judgment granting summary judgment in
favor of Breakout Kings and TCFFC is affirmed. Costs of this appeal are
assessed against the appellant, Sarah Eilts.
DENIAL OF MOTION TO STRIKE REVERSED; SUMMARY JUDGMENT AFFIRMED.