Smith v. Sam

237 So. 3d 1204
CourtLouisiana Court of Appeal
DecidedFebruary 7, 2018
Docket17–664
StatusPublished
Cited by1 cases

This text of 237 So. 3d 1204 (Smith v. Sam) 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
Smith v. Sam, 237 So. 3d 1204 (La. Ct. App. 2018).

Opinion

GREMILLION, Judge.

*1206Melody Smith,1 the plaintiff-appellant, appeals the trial court's judgment granting summary judgment in favor of the defendant-appellee, Circle K Stores, Inc. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Smith, who was a manager-trainee of Circle K, was robbed at gunpoint by Marcus Sam while attempting to make a bank deposit for Circle K. Smith, who has collected workers' compensation benefits since the incident, filed a petition for damages against Sam and Circle K amongst others. Circle K thereafter filed an exception of no right of action/no cause of action and motion for summary judgment urging that Smith's only remedy existed in workers' compensation and that Smith would not be able to prove that an intentional tort was committed by Circle K. Smith filed an amended and supplemental petition alleging that the Circle K manager was "substantially certain" that Smith would be robbed after instructing Smith to make the deposit in front of Sam. The petition further alleged that Sam was the boyfriend of Smith's co-worker. Smith further claimed that the robbery was inevitable due to the announcement in front of customers. Smith's amended petition states:

Circle K Stores committed intentional torts of assault and/or battery on Plaintiff, Melody Smith, because it was substantially certain that one within earshot of hearing that a person is making a money deposit to the bank would be robbed by an armed person, and as a consequence, it was substantially certain that its employee would be shot and wounded or killed in the process of a robbery.

Smith concedes that the manager did not intend for the robbery to occur but that she was substantially certain it would occur. At a December 2014 hearing, the trial court indicated that summary judgment was premature and that Smith should be allowed discovery before it ruled on the motion.

In July 2016, after discovery deadlines had lapsed, Circle K filed another motion for summary judgment urging that Smith's tort claim was barred by the exclusive remedy provisions of the LWCA and that Smith had not "taken a single deposition, obtained a single affidavit, produced a public record or otherwise taken any action to support her claim of a conspiracy or to otherwise show that Circle K was substantially certain that Smith would be injured in a robbery."

Following an October 2016 hearing, the trial court rendered judgment in November 2016 granting summary judgment in favor of Circle K. Smith now appeals and assigns as error:

1. Granting a Summary Judgment in a case involving examination of a person's knowledge, intent or credibility when it was demonstrated by the plaintiff that the manager's intent was to bring about harm to the appellant; and *12072. Granting a summary judgment after Appellant brought forth evidence to support her shifting burden of proof that a material issue of fact exists as to whether the managers' acts were intentional and the defendant's only arguments [sic] is that the plaintiff cannot prove her case.

DISCUSSION

We review a trial court's grant of summary judgment de novo using the same legal standards applicable at the trial court level. Lewis v. Old Republic Ins. Co. , 17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557. The mover bears the burden of proving that summary judgment should be granted in its favor, but if the mover will not bear the burden of proof at trial, it need only point out the other party's inability to prove an element of her case. La.Code Civ.P. art. 966(D)(1). The other party must provide some evidence establishing that a genuine issue of material fact exists such that summary judgment is inappropriate. Id.

Pursuant to La.R.S. 23:1032(A)(1)(a), an employee's exclusive remedy for accident or injury occurring in the workplace is via workers' compensation unless an intentional tort has been committed. The seminal case defining an intentional tort is Bazley v. Tortorich , 397 So.2d 475 (La.1981).

The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

Id. at 482 (citations omitted).

Even "reckless or wanton conduct or gross negligence" does not amount to intent. Blevins v. Time Saver Stores, Inc. , 99-383 (La.App. 5 Cir. 10/26/99), 746 So.2d 191, 193. The intentional act exception is narrowly construed. Id. The term "substantially certain" has been discussed by Louisiana courts numerous times, and it is clear that in order for an action to have been substantially certain to result in a certain consequence, the outcome must have been "nearly inevitable," "virtually sure," and "incapable of failing." Id. at 193.

We have reviewed the record and find that Smith has not produced any evidence whatsoever to suggest, much less prove, that an intentional tort occurred, despite being given ample time to do so. Instead, we have multiple assertions in various documents filed by Smith that are unsupported by any type of evidence. Smith's brief lists eleven "material issues of disputed facts" alleging things that the store manager knew such as:

1. The Circle K store manager told Appellant to make the deposit on September 21, 2013, the day of the robbery because the Circle K manager was certain that she (Circle K manager) would be robbed that same day by that robber, Marcus Sam;
2.

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Related

Smith v. Circle K Stores, Inc.
248 So. 3d 516 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
237 So. 3d 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-sam-lactapp-2018.