Dianne Bates v. Robert C. King

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1591

DIANNE BATES

VERSUS

ROBERT C. KING, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 214,433
HONORABLE WILLIAM ROSS FOOTE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Daniel Elmo Broussard Jr.
Broussard, Bolton, Halcomb, & Vizzier
P. O. Box 1311
Alexandria, LA 71309
(318) 487-4589
Counsel for Plaintiff-Appellant:
Dianne Bates

Mary McCrory Hamilton
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502
(337) 232-9700
Counsel for Defendant-Appellee:
Robert C. King
Jana Cole King
Pitt Grill, Inc.

PICKETT, Judge.

The appellant, Dianne Bates, appeals a judgment of the trial court sustaining

the Exception of No Cause of Action filed by her employer, Pitt Grill, Inc., and

dismissing her claims against Pitt Grill pursuant to La.R.S. 23:1032. For the

following reasons, we affirm.

STATEMENT OF THE CASE

On September 10, 2002, Dianne Bates, while in the course and scope of her

employment as a waitress for Pitt Grill, slipped and fell. She broke her right leg and

injured her back in the fall. She filed suit against the owners of the building, Robert

C. King and Jana Cole King, alleging that she slipped and fell in a pool of water

caused by a leaking roof. In the alternative, Bates filed suit against Pitt Grill, Inc., as

lessee of the building, arguing that they assumed responsibility for defects in the

building as lessee pursuant to La.R.S. 9:3221.

Pitt Grill filed an Exception of No Cause of Action, alleging that as Bates’

employer, her exclusive remedy against it is in workers’ compensation pursuant to

La.R.S. 23:1032. The trial court held a hearing on the exception on March 19, 2004.

After taking the matter under advisement, the trial court issued amended reasons for

judgment on June 1, 2004, finding in favor of Pitt Grill, and signed a judgment on

June 25, 2004, dismissing Bates’ claims against Pitt Grill. Bates now appeals.

ASSIGNMENT OF ERROR

The appellant, Dianne Bates, asserts one assignment of error:

1. The trial court erred in sustaining the Peremptory Exception of No
Cause of Action of defendant, Pitt Grill, Inc.

DISCUSSION

The supreme court explained the function of a peremptory exception of no

cause of action in Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114,

118-19:

A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the plaintiff’s
right to judicially assert the action against the defendant. Everything on
Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238
(La.1993). The function of the peremptory exception of no cause of
action is to test the legal sufficiency of the petition, which is done by
determining whether the law affords a remedy on the facts alleged in the
pleading. Id. at 1235. No evidence may be introduced to support or
controvert an exception of no cause of action. La. C.C.P. art. 931.
Consequently, the court reviews the petition and accepts well-pleaded
allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections,
00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels
Subaru, 616 So.2d at 1235. The issue at the trial of the exception is
whether, on the face of the petition, the plaintiff is legally entitled to the
relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637
So.2d 127, 131.

....

The burden of demonstrating that the petition states no cause of
action is upon the mover. City of New Orleans v. Board of Com’rs of
Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.
In reviewing the judgment of the district court relating to an exception
of no cause of action, appellate courts should conduct a de novo review
because the exception raises a question of law and the lower court’s
decision is based solely on the sufficiency of the petition. Fink v.
Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; City of New
Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether,
in the light most favorable to plaintiff and with every doubt resolved in
plaintiff’s behalf, the petition states any valid cause of action for relief.
City of New Orleans at p. 29, 640 So.2d at 253.

The inquiry here must begin with the statute which affords employers immunity

from civil suits brought by their employees. Louisiana Revised Statutes 23:1032(A)

states:

(1)(a) Except for intentional acts provided for in Subsection B, the
rights and remedies herein granted to an employee or his dependent on

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account of an injury, or compensable sickness or disease for which he
is entitled to compensation under this Chapter, shall be exclusive of all
other rights, remedies, and claims for damages, including but not limited
to punitive or exemplary damages, unless such rights, remedies, and
damages are created by a statute, whether now existing or created in the
future, expressly establishing same as available to such employee, his
personal representatives, dependents, or relations, as against his
employer, or any principal or any officer, director, stockholder, partner,
or employee of such employer or principal, for said injury, or
compensable sickness or disease.

(b) This exclusive remedy is exclusive of all claims, including any
claims that might arise against his employer, or any principal or any
officer, director, stockholder, partner, or employee of such employer or
principal under any dual capacity theory or doctrine.

(2) For purposes of this Section, the word “principal” shall be
defined as any person who undertakes to execute any work which is a
part of his trade, business, or occupation in which he was engaged at the
time of the injury, or which he had contracted to perform and contracts
with any person for the execution thereof.

There is no claim that Pitt Grill committed any intentional act which caused Bates’

injuries. Instead, Bates alleges that Pitt Grill executed a lease agreement wherein it

assumed responsibility for damages arising from defects in the premises as

contemplated by La.R.S. 9:3221. The supreme court in Stelly v. Overhead Door Co.

of Baton Rouge, 94-569 (La. 12/8/94), 646 So.2d 905, found that the language in

La.R.S. 23:1032 did not shield the employer from liability in a similar case.

However, the court in Stelly was interpreting the pre-1990 version of the statute. The

legislature amended Section 1032 by 1989 La.Acts No. 454, §2, effective January 1,

1990, which added subsection A(1)(b). This amendment excluded all claims by an

employee brought against an employer under any theory of dual capacity. In footnote

nine of the opinion in Stelly, the supreme court stated that they would not address the

impact of the amendment in that case.

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This court has addressed this issue in a case in which the 1990 amendment

applied. In Hesse v. Champ Service Line, 97-1090 (La.App. 3 Cir. 2/4/98), 707 So.2d

1295, an employee sued his employer after he was electrocuted at work. He claimed

the injury occurred as a result of the failure to install equipment to prevent such

injuries. He sued his employer, claiming the employer had assumed liability from the

owner/lessor of the building pursuant to La.R.S. 9:3221. This court held that Stelly

was not controlling and that “[t]he dual capacity doctrine has been legislatively

abrogated.” Hesse at 1297. We found that the employee’s exclusive remedy was in

workers’ compensation. This case squarely falls within the decision of this court in

Hesse, and the appellant’s argument lacks merit.

The appellant further argues that the provisions of La.R.S. 23:1032 as amended

“do not abrogate dual capacity liability if that status is based on the employer’s

contractual assumption of an owner-lessor’s liability.” The Hesse decision discussed

the issue of dual capacity at length:

As we noted in Moore v. St. Francis Cabrini Hospital, 96-188
(La.App. 3 Cir. 8/21/96), 679 So.2d 943:

Apparently, in response to the Ducote [v. Albert, 521 So.2d
399 (La.1988)] decision, the legislature amended La.R.S.
23:1032 to provide that the workers’ compensation
exclusive remedy is exclusive of all claims that might arise
against the employer or any employee of such employer
under any dual capacity theory or doctrine. The dual
capacity language was added by Acts 1989, No. 454, § 2,
effective January 1, 1990, and effectively overruled
Ducote, 521 So.2d 399. Wright v. State, 93-3095
(La.7/5/94); 639 So.2d 258.

Moore, 679 So.2d 943, 945.

In Wright the supreme court explained the dual capacity doctrine
as follows:

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In a true dual capacity case, an employer or
co-employee must wear two hats simultaneously, as is the
case with a company doctor. At the time of the
work-related injury, the company doctor has two
relationships with the plaintiff: doctor and co-employee.
Another example of dual capacity is when an employee is
injured on the job using a product manufactured by his
employer. In such situations, an employer’s second
capacity is inextricably intertwined with his capacity as
employer.

The dual capacity cases where tort liability was
correctly prohibited involved employers who occupied dual
roles with dual responsibilities toward the employee at the
time of the work-related accident.

Wright, 639 So.2d 258, 260.

Thus, “[t]he supreme court has concluded that the legislature did
not intend for the exclusive remedy provision of the Workers’
Compensation Law to relieve employers from tort liability for
negligence that is not related to the employment relationship.” Moore,
679 So.2d 943, 945.

The Wright court referenced Roberts v. Orpheum Corp., 610
So.2d 1097 (La.App. 4 Cir.1992), writ denied, 616 So.2d 682 (La.1993),
as a case where tort liability was correctly prohibited. In Roberts, the
fourth circuit affirmed a grant of summary judgment where a member of
the stage crew for the New Orleans Symphony sued his employer in tort
alleging that his claim was not based upon the employer’s direct
commission of a tort, but rather its contractual assumption under the
lease for the condition of the premises.

Hesse, 707 So.2d at 1297.

The appellant also cites cases in which this court has held that an owner of a

building cannot shift the liability under La.R.S. 9:3221 if the injured party is an

employee of the employer-lessee. Wallace v. Helmer Directional Drilling, Inc.,

93-901 (La.App. 3 Cir. 7/13/94), 641 So.2d 624; Haley v. Calcasieu Parish Sch. Bd.,

99-883 (La.App. 3 Cir. 12/8/99), 753 So.2d 882, writ denied, 00-54 (La. 2/24/00),

755 So.2d 242. These cases address the relationship between the employee and the

owner of a building and hold that because of the immunity granted by La.R.S.

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23:1032, the owner-lessor of a building cannot transfer liability to the employer-

lessee. These cases refute rather than support the appellant’s argument.

We find the appellant’s exclusive remedy against Pitt Grill to be in workers’

compensation. We find no error in the trial court’s ruling. The judgment is,

therefore, affirmed at Dianne Bates’ cost.

AFFIRMED.

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