White v. Monsanto Co.

570 So. 2d 221, 1990 WL 180777
CourtLouisiana Court of Appeal
DecidedNovember 14, 1990
Docket90-CA-362
StatusPublished
Cited by4 cases

This text of 570 So. 2d 221 (White v. Monsanto Co.) 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
White v. Monsanto Co., 570 So. 2d 221, 1990 WL 180777 (La. Ct. App. 1990).

Opinion

570 So.2d 221 (1990)

Irma WHITE
v.
MONSANTO COMPANY and Gary McDermott.

No. 90-CA-362.

Court of Appeal of Louisiana, Fifth Circuit.

November 14, 1990.
Rehearing Denied December 17, 1990.
Writ Denied February 22, 1991.

*222 Gerald E. Meunier, New Orleans, for plaintiff/appellee.

Norman A. Mott, III, James A. Nugent, New Orleans, for defendants/appellants.

Before KLIEBERT, GRISBAUM and WICKER, JJ.

WICKER, Judge.

Monsanto Company and its employee, Gary McDermott, the defendants, appeal a judgment in favor of the plaintiff, Irma White. The issues are (1) the exclusiveness of the worker's compensation law, (2) juror bias, (3) jury instructions, and (4) damages. We affirm.

White and McDermott were both employees of Monsanto, with McDermott in a supervisory position. During the course of the work day, McDermott cursed White and two other employees, causing White to suffer an anxiety attack resulting in hospitalization. The words he used included *223 "fuck", "fuckin'", "motherfuker", "ass", and "shit." McDermott also threatened to have these employees fired. Following the incident, White voluntarily remained a part of McDermott's crew and an employee of Monsanto.

White sued McDermott and Monsanto, as his employer, for intentional infliction of emotional distress. A jury awarded her $60,000.00 in damages against both defendants in solido.

THE INTENTIONAL TORT EXCLUSION

La.R.S. 23:1032 limits a worker's remedy for on-the-job injury to worker's compensation unless the injury resulted from an intentional act. The intentional act alleged by White, and found by the jury, is intentional infliction of emotional distress. "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and, if bodily harm to another results from it, for such bodily harm." Restatement (2d) of Torts, Sec. 46(1) [1965], cited with approval in Steadman v. South Cent. Bell Telephone Co., 362 So.2d 1144 (La.App. 4th Cir.1978).

In Louisiana, a plaintiff wishing to recover damages for this tort must prove that the defendant "actively desired to bring about the mental anguish or realized to a virtual certainty that it would occur" and that the defendant's conduct was outrageous. Steadman v. South Cent. Bell Telephone Co., supra at 1145; Smith v. Mahfouz, 489 So.2d 409 (La.App. 3rd Cir. 1986), writ den. 494 So.2d 1181 (La.1986).

No one disputed White's evidence that she is a decent, church-going person who does not use or condone profanity. She had worked for Monsanto for about nine years prior to this incident. On the morning in question, she and three other employees were assigned to transfer the contents of a large container, marked "corrosive", to one-gallon containers. They requested gloves and safety goggles and were waiting for them to arrive. Two of the other employees were apparently sitting around waiting for the equipment, against company regulations which required employees to busy themselves cleaning the work site if they had to wait. White, however, began cleaning up in the area.

McDermott appeared on the scene, angry and ranting, having been told that White and the other employees were just standing around. From a point about two or three feet from White, he referred to them as "motherfuckers" repeatedly, accused them of sitting on their "fuckin' asses", and threatened to fire them. The employees knew that McDermott had the authority to remove them from the premises and recommend termination. The whole exchange lasted about a minute or more. McDermott testified that his language and demeanor were deliberate and appropriate. He also admitted that his intent was to shake up the employees and make them fearful of losing their jobs. There was testimony, although denied by McDermott, that he again threatened White after she returned to work that he would stack the deck against her if she complained about what he had done.

We believe White has proved that McDermott actively desired to bring about her mental anguish. We also believe that, under these factual circumstances, McDermott's conduct was outrageous.

Despite the claims of McDermott and Monsanto that this language is commonplace and can be heard in the comedy routines of people like Eddie Murphy and Richard Pryor, in many circles and for many people this kind of language is not commonplace. For example, McDermott and Monsanto excused one juror for cause because of her attitude toward such language. People can choose whether or not they wish to watch Richard Pryor or Eddie Murphy. White was, in effect, a captive audience to McDermott's profanity and threats—she could not retaliate in kind to her supervisor and may not have been able to walk away without jeopardizing her employment.

The case of LeJeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990), is evidence that Louisiana is expanding the range of *224 compensable mental or emotional injuries to now include damages resulting from injuries to a closely-related third party. The Court noted that "the interest in freedom from mental disturbance has been the subject of substantial controversy." At 563.

California courts have allowed recovery under similar circumstances. In Alcorn v. Ambro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970), the plaintiff was a black employee who was told by his white field supervisor, "You goddam `niggers' are not going to tell me about the rules. I don't want any `niggers' working for me. I am getting rid of all the `niggers'...." Alcorn sued for intentional infliction of emotion distress, even though under arbitration he had been reinstated with back pay. He alleged damages including shock, nausea, insomnia, and humiliation. The employer argued that Ambro had failed to state a cause of action. In ruling in favor of Ambro, the Court stated 86 Cal.Rptr. at 90-91, 468 P.2d at 218-219:

Thus, according to plaintiff, defendants, standing in a position or relation of authority over plaintiff, aware of his particular susceptibility to emotional distress, and for the purpose of causing plaintiff to suffer such distress, intentionally humiliated plaintiff, insulted his race, ignored his union status, and terminated his employment, all without just cause or provocation. Although it may be that mere insulting language, without more, ordinarily would not constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient to uphold his complaint as against defendants' general demurrer.

In another California case, the lower court had dismissed the complaint that the defendants had caused a complaint and summons to be served on the plaintiffs at twelve o'clock midnight, pounding on the door in a loud and boisterous manner that resulted in waking the whole family and the neighborhood. The appellate court, in reversing the trial court, held 97 Cal.Rptr. at 586 and 588:

Nevertheless when the defendants intended the consequences, and they in fact result, as is alleged in this case, should the court substitute its judgment as to what is outrageous in order to relieve the defendants of responsibility for their intended acts? Comment h. to section 46 provides as follows: "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so.

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Related

Moody v. Jefferson Parish School Board
803 F. Supp. 1158 (E.D. Louisiana, 1992)
Thomas v. Frederick
766 F. Supp. 540 (W.D. Louisiana, 1991)
White v. Monsanto Co.
575 So. 2d 381 (Supreme Court of Louisiana, 1991)

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Bluebook (online)
570 So. 2d 221, 1990 WL 180777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-monsanto-co-lactapp-1990.