Heather Hoffman v. Target Corporation of Minnesota

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1067

HEATHER HOFFMAN

VERSUS

TARGET CORPORATION OF MINNESOTA

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 20033534
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Bob Broussard
D. Patrick Daniel, Jr.
201 Rue Iberville, Suite 300
P.O. Box 80827
Lafayette, Louisiana 70598-0827
(337) 232-3333
COUNSEL FOR PLAINTIFF/APPELLANT:
Heather Hoffman

John S. Lawrence, Jr.
David P. Curlin
Lawrence & Associates
215 St. Ann Drive, Ste. 2
Mandeville, Louisiana 70471
(985) 674-4446
COUNSEL FOR DEFENDANT/APPELLEE:
Target Corporation of Minnesota

COOKS, Judge.

STATEMENT OF THE CASE

The Plaintiff, Heather Hoffman, was employed by Target Corporation of

Minnesota (Target) in the bakery/deli department. Throughout the day, she was

required to retrieve items from the back freezer to be used in her department. On

April 4, 2003, while carrying a box of bagels, she slipped and fell on ice present on

the freezer floor. She filed a tort action against her employer based on the intentional

act exception to the workers’ compensation statute found in La.R.S. 23:1032(B). The

trial court granted a summary judgment in favor of Target finding Ms. Hoffman’s

exclusive remedy is in workers’ compensation. This appeal followed. For the

reasons assigned below, we affirm the decision of the trial court.

LAW AND DISCUSSION

The intentional tort exception to the workers’ compensation statute is found in

La.R.S. 23:1032(B) which provides, in relevant part:

Nothing in this Chapter shall affect the liability of the employer,
or any officer, director, stockholder, partner, or employee of such
employer or principal to a fine or penalty under any other statute or the
liability, civil or criminal, resulting from an intentional tort.

In Guillory v. Olin Corp., 99-567, pp. 4-5 (La.App. 3 Cir. 10/13/99), 745 So.2d

713, 715-16, writ denied, 99-3600 (La. 2/18/00), 754 So.2d 968, this court explained

the requirements under the intentional act exception found in La.R.S. 23:1032(B):

The statute as enacted limits the availability of tort recovery only to
employees whose injuries are caused by genuine intentional acts,
anything less than intentional, whether it be gross negligence or
violation of a safety rule, remains in workers’ compensation. The
Plaintiff must prove the employer’s intent which is defined as: (1)
consciously desiring the physical results of the particular conduct, or (2)
knowledge that the physical results were “substantially certain” to
follow such conduct. Bazley v. Tortorich, 397 So.2d 475 (La. 1981).
....

Although believing that someone may, or even probably will, eventually

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get hurt if a workplace practice is continued, does not rise to the level of
an intentional act, but instead falls within the range of negligent acts that
are covered by workers’ compensation. Reeves [v. Structural
Preservation Systems, 98-1795 (La.3/12/99,] 731 So.2d [208] at 212.
“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.” Reeves, 731 So.2d at 213,
quoting Jasmin v. HNV Cent. Riverfront Corp. 94-1497 (La.App. 4 Cir.
8/30/91); 642 So.2d 311,312, writ denied, 94-2445 (La. 12/9/94); 647
So.2d 1110.

The plaintiff has the burden of proving the work-related injury resulted from

an intentional act. Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La. 1984). “Even

if the alleged conduct goes beyond aggravated negligence, and includes such

elements as knowingly permitting a hazardous work condition to exist, knowingly

ordering claimant to perform an extremely dangerous job, or willfully failing to

furnish a safe place to work, this still falls short of the kind of actual intention to

injure that robs the injury of accidental character.” Reeves, 731 So.2d at 210, quoting

Larson, @ A Workmen’s Compensation Law, § 68.13 (1989). “[A]llegations of

failure to provide a safe place to work, deficiently designed machinery and disregard

of OSHA safety provisions, failure to correct unsafe working conditions, and failure

to provide specifically requested safety equipment are not sufficient to invoke the

intentional act exception of Revised Statute 23:1032(B) absent proof (or in the case

of summary judgment, disputed issues of fact) of either defendant’s desire to harm

plaintiff or defendant’s knowledge that his conduct would nearly inevitably cause

injury to plaintiff.” Labbe v. Chemical Waste Management, Inc., 99-1562, p. 5

(La.App. 3 Cir. 3/29/00), 756 So.2d 613, 617.

The jurisprudence has narrowly construed the intentional tort exception to the

exclusivity clause in the workers’ compensation statute. In Mouton v. Blue Marlin

Specialty Tools, Inc., 01-648 (La.App. 3 Cir. 10/31/01), 799 So.2d 1215, the plaintiff

was hired by Blue Marlin to clean and recondition used oilfield pipe and rental

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equipment. He sought medical treatment when a piece of metal became lodged in his

eye. He also complained of severe headaches, dizziness, breathing difficulty, and

chest pains. His physician wrote a note to his supervisors advising that he “avoid

Varsol and other solvent exposures to skin or to strong fumes.” The plaintiff gave the

note to his employer, but continued to perform the same duties. When he became ill,

he sued his employer under the intentional tort exception. This court found the

plaintiff failed to carry his burden of proof, stating: “The statute as enacted limits the

availability of tort recovery only to employees whose injuries are caused by genuine

intentional acts, anything less than intentional, whether it be gross negligence or

violation of a safety rule, remains in workers’ compensation.” Mouton, 799 So.2d at

1219. See also, Labbe v. Chemical Waste Management, Inc., 99-1562 (La.App. 3 Cir.

3/29/00), 756 So.2d 613; Reeves v. Structural Preservation Systems, 98-1795 (La.

3/1/99), 731 So.2d 208.

Ms. Hoffman contends the ice accumulated on the freezer floor in areas where

she and other employees were required to work created an unreasonably dangerous

condition. Target had specific knowledge of the dangerous conditions but took no

remedial measures to correct the problem other than requiring its employees to break

up and remove the ice from the freezer floor. Target did not provide its employees

with training regarding how to work on or around ice and did not provide safety

equipment while working in the freezer. Ms. Hoffman alleges Target intentionally

exposed her to the risk of falling on a daily basis. In support of her position, Ms.

Hoffman offered the testimony of several co-employees.

Barbara Jean worked in the bakery/deli department. She testified the back

freezer and the bakery freezer had a history of accumulating ice on the freezer floor.

Periodically, the ice would be broken up and removed from the freezer by either a

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bakery employee or someone from maintenance. Ms. Jean testified she occasionally

slipped on the ice but had never fallen. However, Ms. Jean never mentioned this

incident to an employee or supervisor of Target.

Ms. Hoffman submitted the testimony of Tyra Guilbeau, her immediate

supervisor. Ms. Guilbeau testified it was common knowledge ice would be present

on the freezer floor. However, Ms. Guilbeau stated this would occur when the freezer

door was left open.

Kaili Broussard, the bakery executive team leader, testified Target called in a

maintenance company to service the freezer on several occasions. Ms. Broussard

testified the ice was caused by condensation forming when the freezer doors were left

open by the bakery employees. Specifically, condensation would drip from one of

the fans in the freezer onto the floor. Once the freezer door was closed the

temperature would drop below freezing and the condensation would form ice on the

floor. Ms. Broussard knew of the icy conditions and would receive instructions from

her supervisor to remove the ice and remind the bakery employees to keep the freezer

door closed. She personally met with several employees instructing them about the

freezer door.

We have reviewed the testimony presented and conclude Ms. Hoffman will be

unable to carry the burden of proving Target consciously desired an injury to occur

or was substantially certain its conduct in maintaining the freezer in that condition

would cause injury to Ms. Hoffman. It is undisputed ice accumulated on the floor of

the freezer was caused by the carelessness of employees leaving the freezer door

open. Target attempted to remedy the situation and cautioned the Plaintiff and others

about the icy conditions. However, even if Plaintiff demonstrates the presence of ice

on the freezer floor created a hazardous condition in violation of safety regulations,

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the “jurisprudence has made it clear this alone is not sufficient to raise a fact question

on the issue of intentional tort.” Mouton, 799 So.2d at 1220. We agree with the trial

court that Plaintiff will be unable to support a claim under the intentional act

exception to the workers’ compensation statute. Accordingly, we affirm the decision

of the trial court granting the summary judgment in favor of Target.

DECREE

Based on the foregoing review of the evidence, we affirm decision of the trial

court finding Ms. Hoffman’s exclusive remedy to be in workers’ compensation. All

costs of this appeal are assessed to Heather Hoffman.

AFFIRMED.

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