Raywood Joseph Broussard v. Terry Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 08-473

RAYWOOD JOSEPH BROUSSARD

VERSUS

TERRY SMITH, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 65510
HONORABLE EDWARD LEONARD JR., DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Chris J. Roy, Sr.*,
Judges.

ROY, SR., Judge, dissents and assigns written reasons.

AFFIRMED.

H. Douglas Hunter
Guglielmo, Lopez, Tuttle, Hunter & Jarrell
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
Counsel for Plaintiff/Appellant:
Raywood Joseph Broussard

James Louis Daniels
Ringuet, Daniels & Collier
P. O. Box 52647
Lafayette, LA 70505
(337) 232-0002
Counsel for Defendant/Appellee:
Food-N-Fun, Inc.

*
Honorable Chris J. Roy, Sr., participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

This appeal arises from a grant of summary judgment by the Sixteenth Judicial

District Court, finding that no genuine issue of material fact remained as to whether

worker’s compensation benefits are the exclusive remedy available to appellant,

Raywood Broussard (hereinafter “Broussard”). Broussard is the biological father of

the children of Jeri Lynn Gary (hereinafter “Gary”), who was murdered while

working for Food-N-Fun, Inc. D/B/A Player’s Club (hereinafter “Player’s Club”).

Player’s Club is located in a “high crime” area on the outskirts of Cade,

Louisiana. Employees at Player’s Club often worked alone and handled large amounts

of cash taken from video poker machines in the club. This cash was kept in a safe

behind the bar and was in full view of the patrons.

Charlene Babineaux (hereinafter “Babineaux”), manager at Player’s Club,

voiced concerns to her employer about her and her fellow employees’ safety.

Babineaux objected to the removal of a video monitoring system at Player’s Club, and

specifically voiced concern that sooner or later somebody would rob the safe.

At 9:30p.m. on July 16, 2001, Terry Smith (hereinafter “Smith”), a frequent

patron at Player’s Club, crushed Gary’s skull with a fire extinguisher, removed the

key to the safe from her body, and stole $8,000.00 from the safe behind the bar. The

murder was discovered sometime later when another patron entered Player’s Club and

saw the crime scene. Broussard asserts that, after having been warned of the danger,

Player’s Club’s failure to provide a safer working environment was an intentional act

that caused Gary’s death.

Broussard appeals the trial court’s grant of summary judgment in favor

of Player’s Club and presents one central assignment of error.

ASSIGNMENT OF ERROR:

Did the trial court err in finding that there was no genuine issue of material fact

and granting Player’s Club’s motion for summary judgment?

Summary Judgment

Broussard asserts that the trial court erred in granting Player’s Club’s motion

for summary judgment, because there remained a genuine issue of material fact as to

whether Player’s Club’s action constituted an intentional tort. We disagree.

A motion for summary judgment is a procedural device
used when there is no genuine issue of material fact. The
summary judgment procedure is favored and designed to
secure the just, speedy, and inexpensive determination of
every action and shall be construed to accomplish these
ends. La. C.C.P. art. 966(A)(2).

Duncan v. U.S.A.A. Ins. Co., 06-363, p. 3 (La. 11/29/06), 950 So.2d 544, 546-47.

“Appellate courts review summary judgments de novo under the same criteria that

governed the trial court’s consideration . . . .” Spera v. Lyndon Prop. Ins. Co., 00-

1373, p. 2 (La.App. 3 Cir. 3/7/01), 788 So.2d 56, 58-59. Thus, summary judgment in

this case is only appropriate if, upon review of the record before us, we find that there

is no genuine issue as to whether Player’s Club’s actions constituted an intentional

tort.

Generally, when a worker seeks to recover from her employer for injuries

suffered during the course and scope of employment, recovery is limited through the

Louisiana Workers Compensation Act, La.R.S. 23:1032, which provides immunity

from civil liability in favor of an employer. Cole v. State, Dept. of Pub. Safety &

Corr., 01-2123 (La. 9/4/02), 825 So.2d 1134, 1138.

La. R.S. 23:1032(A)(1)(a) provides, in pertinent part:

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

In interpreting the Workers Compensation Act, the Louisiana Supreme

Court has held that:

[C]ompensation shall be an employee’s exclusive
remedy against his employer for an unintentional injury
covered by the act, but that nothing shall prevent an
employee from recovering from his employer under
general law for intentional tort.

Caudle v. Betts, 512 So.2d 389,390 (La.1987).

The “intentional act” loophole is the only exception to the Workers

Compensation Act, and courts interpret this exception narrowly. Bridges v. Carl

E. Woodward, Inc., 94-2675 (La.App. 4Cir.10/12/95), 663 So.2d 458,463, writ

denied, 95-2735 (La.1/26/96), 666 So.2d 674.

In order to prevail in a case such as the one presented here, Broussard must

show that Player’s Club’s failure to take action to insure Gary’s safety “was an

intentional action which was ‘substantially certain’ to result in injury to the plaintiff.”

Id. “Substantially certain” has been held to mean “nearly inevitable,” “virtually sure,”

and “incapable of failing.” Belvens v. Time Saver Stores, Inc., 99-383, p. 3 (La.App.

5 Cir. 10/26/99), 746 So.2d 191, 193 (citing Jasmin v. HNV Cent. Riverfront Corp.,

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94-1497, p.1 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, 312-313, writ denied, 94-2445,

647 So.2d 1110. Lesser degrees of certainty, such as “reasonably foreseeable,” and

“should have known,” may raise issues of negligence or gross negligence, but do not

constitute an “intentional act,” as required to recover outside of the workers

compensation act. Adams v. Time Saver Stores, Inc., 615 So.2d 460, 461-62 (La.App.

4th Cir.1993), writ denied, 617 So.2d 910 (La.1993).

Player’s Club may have been negligent in removing the video surveillance

equipment and failing to take adequate safety measures. However, “Louisiana Courts

have held that an employer’s failure to provide even specifically requested safety

equipment is not an intentional tort for purposes of the exception to the worker’s

compensation exclusivity rule.” Dycus v. Martin Marietta Corp., 568 So.2d 592, 594

(La.App. 4 Cir.1990), writ denied, 571 So.2d 649 (La.1990), (citing Jacobsen v. Se.

Distrib., Inc., 413 So.2d 995 (La.App. 4t Cir. 1982), writ denied, 415 So.2d 953

(La.1982)). Furthermore, this court has specifically held that, “[a]n injury can not be

considered as intentionally caused merely because there exists a high probability of

an injury occurring. . .” Mahfouz v. J.A.C.E. Oilfield Sales & Service Inc., 569 So2d

1074,1077 (La.App. 3 Cir. 1990) (citing Hood v. South Louisiana Med. Ctr., 517

So.2d 469 (La.App. 1 Cir. 1987)).

Player’s Club’s lack of concern for the safety of its employees is

unconscionable. While this callous indifference is regrettable, it is clear from the

record that Player’s Club did not have an active desire to harm Gary. Therefore, the

record supports the finding of the trial court that there is no genuine issue of material

fact that could possibly allow the court to conclude that Player’s Club acted

intentionally to harm Gary. Neither are the complaints and knowledge of Player’s

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Club manager, Babineaux, sufficient to confer upon Player’s Club the requisite intent

to satisfy the exception to the workers compensation exclusivity rule.

CONCLUSION:

For the above-stated reasons, we affirm the decision of the trial court in all

respects. All costs are to be shared equally between the parties.

AFFIRMED.

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NUMBER 08-473

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

RAYWOOD JOSEPH BROUSSARD ON BEHALF OF HIS MINOR
CHILDREN, BLAISE PAUL BROUSSARD AND LUCY RENE BROUSSARD

VERSUS

FOOD-N-FUN, INC. D/B/A PLAYER’S CLUB

ROY, Judge, (pro tempore) dissents and assigns written reasons.

La.R.S. 23:1032(A) and (B) state:1

A. (1)(a) Except for intentional acts provided for in Subsection B,
the rights and remedies herein granted to an employee or his dependent
on 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 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, any principal or any
officer, director, stockholder, partner, or employee of such employer or
principal under any dual capacity theory or doctrine.

....

B. 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 act.

1
Prior to the 1976 amendment, the statute read: “The rights and remedies herein granted
to an employee or his dependent on account of a personal injury for which he is entitled to
compensation under this Chapter shall be exclusive of all other rights and remedies of such
employee, his personal representative, dependents, or relations.”

Thus, pursuant to La.R.S. 23:1032, as amended by Act 147 of 1976, an

employee’s exclusive remedy for work-related injuries is in worker’s comp unless the

employee can prove that the claim is based on an intentional tort. Act 147 served to

expand the list of defendants to co-employees (not just employers) granted immunity

from suits by injured employees such that worker’s compensation would be the

exclusive remedy unless the intentional tort exception applied.

It is clear that both the appellate and supreme courts of this state have

followed a very narrow interpretation of what constitutes an “intentional tort,” since

the supreme court’s pronouncements in the seminal case of Bazley v. Tortorich, 397

So.2d 475 (La.1981), placing an extremely high burden of proof on a plaintiff. As

one commentator noted, “the burden of proof on the element of intent in a criminal

case is lower than the corresponding burden in a workers’ compensation case.”

Louisiana Worker’s Compensation Scheme: Substantially Certain to Result in an

Unsafe Workplace, 50 Loy.L.Rev. 209, 227 (2004). I would note that in the cases

prior to the 1976 amendment an employer was afforded no protection from being

sued in tort when an employee was injured by another employee, whereas since the

amendment and the Bazley decision and its progeny the pendulum has swung in the

complete opposite direction shielding employers from liability under nearly every

circumstance. This system certainly does not represent a balance of the interests of

the employer and the employee, but places the inherently more vulnerable party, the

employee, at an extreme disadvantage.

In Bazley, 397 So.2d 475, the plaintiff employee alleged negligence on

the part of a co-worker, not the employer. In my view, an allegation that the

employer is the tortfeasor, rather than a co-employee, merits a different analysis than

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that of a co-employee. While a social policy protecting employers from its

employees’ negligence toward other employees is favorable, I find that the same

cannot be said about the employer as the intentional tortfeasor. In Bazley, the

supreme court defined an intentional act as being the same as an intentional tort,

stating:

In drawing a line between intentional and unintentional acts we
believe the legislative aim was to make use of the well established
division between intentional torts and negligence in common law.

....

....

The meaning of “intent” is that the person who acts either (1)
consciously desires the physical result of his act, whatever the likelihood
of that result happening from his conduct; or (2) knows that that result
is substantially certain to follow from his conduct, whatever his desire
may be as to that result. Thus, intent has reference to the consequences
of an act rather than to the act itself.

Id. at 480-481 (citations omitted).

The supreme court went on to state that Louisiana civil and criminal

codes affirm the legislative acceptance of the meaning of “act” or “intent” stating that

“‘intent’ is present when the offender either desires the consequences of his act or

when he knew that the consequences were reasonably certain to result from his act.”

Id. at 481. Moreover, “[i]f 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 (citation omitted).

Yet, the jurisprudence is replete with cases in which, under any

reasonable interpretation of the terms “substantially certain to result,” the courts have

found that the employer’s act were not intentional. In fact, courts have classified just

what “substantially certain to result” does not include:

3

As we noted in Jasmin [v. HNV Central Riverfront Corp., 94-
1497 (La.App. 4 Cir. 8/30/94), 642 So.2d 311], “[n]ationwide, policy
considerations reflect that the employer’s conduct must go beyond
knowingly permitting a hazardous work condition to exist, ordering an
employee to perform an extremely dangerous job, or willfully failing to
furnish a safe place to work in order to constitute an intent to injure
under the exception.” Jasmin, 94-1497 at p.2, 642 So.2d at 313.

Although a case-by-case analysis is required, Louisiana courts
have distilled four dangerous work place situations that almost
universally do not form the basis for an intentional act; to-wit:

1. Failure to provide a safe place to work;

2. Poorly designed machinery, failure to follow OSHA safety provisions;

3. Failure to provide requested safety equipment;

4. Failure to correct unsafe working conditions.

Zimko v. American Cyanamid, 03-0658, p.13 (La.App. 4 Cir. 6/8/05), 905 So.2d 465,

477, writ denied, 05-2102 (La. 3/17/06), 925 So.2d 538, citing William E. Crawford,

Louisiana Civil Law Treatise, Tort Law 23.3 (2000) (citing Micele v. CPC of

Louisiana, Inc., 98-0044 (La.App. 4 Cir. 3/25/98), 709 So.2d 1065, writ denied, 98-

1116 (La. 6/5/98), 720 So.2d 686..

If that is the case, there can be no point in providing the second prong

of this definition as there is no behavior that would qualify under the stringent

“substantially certain to result” test. One has to wonder if the legislature intended a

social policy which encourages employers to neglect the safety needs of its workers

by placing their workers in unnecessary extremely high-risk dangerous situations,

knowing that they will receive the full protection of the law in worker’s comp.

In this case, the Player’s Club had one petite woman in charge of a bar

equipped with three video poker machines. It was commonly known that the safe

located in the bar and in full view of the patrons contained large amounts of money

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in order to be able to pay out winnings from the video poker machine. Gary kept the

key to the safe on her person which was also in full view of all of the patrons in the

bar. Moreover, what little security did exist, the owner removed. The two security

cameras, which may have deterred someone from committing a crime, were taken out

of the bar. Additionally, there was evidence to suggest that the area was poorly lit

and was a known crime area. Finally, Gary’s own manager, Charlene Boudreaux,

testified that she told the owner that she was fearful for her and the other employees’

safety due to the lack of security measures at the Player’s Club and that a robbery was

inevitable.

The fact that an employee expresses to a higher level supervisor that she

is afraid for her safety has been a factor designated as one that proves that the

employer knew that an employee’s injury was “substantially certain to result.” In

Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d

98, 108, writ denied, 03-2581 (La. 11/26/03), 860 So.2d 1139, the court distinguished

the facts of that case from the supreme court’s opinion in Reeves v. Structural

Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, finding that the plaintiff

employees “testified that they were very much concerned for their safety and

expressed those concerns on numerous occasions” to the supervisor.2 In Robinson,

an apparent anomaly in the cases regarding the intentional tort exception, the

appellate court affirmed the jury’s finding that the employer’s act was intentional.

Although the employer argued that as a matter of law its conduct did not rise to the

2
In Reeves, a jury found an employer committed an intentional act when it instructed its
employee to move a sandblasting pot which had an OSHA required sticker on it that read “DO
NOT MOVE MANUALLY.” Further, the employee’s supervisor testified that he feared that
someone would eventually get hurt. The appellate court affirmed the jury’s findings. The
supreme court reversed finding that the jury committed manifest error because its finding that an
intentional act had occurred was not reasonable in light of the record.

5

level of an intentional act, the Robinson court noted that it was limited to a manifest

error review of the jury’s finding.

Both the trial court and the majority of this court noted the

“unconscionable” nature of the Player’s Club’s lack of concern for its employees’

safety. The trial court made the following factual findings in its judgment:

The evidence shows that the defendant did not provide proper
security for its employee, Ms.Gary. The Player’s Club was connected
to the remainder of the store, but there was no access from one area to
the other except from the outside. Security cameras and/or monitors, is
present, were not adequate. The procedure for handling large amounts
of cash were not safe or adequate.

Thus, the question remains, if an act/inaction of employer rises to the

level of being “unconscionable” in that it shows utter disregard for human safety

knowing full well that certain easy measures could have been taken (i.e. moving the

safe, having security cameras present, having a security guard, etc.) to substantially

reduce the chance of an employee being injured or killed, what more should a

plaintiff have to prove in order to meet the “substantially certain to follow” test?

Moreover, what social policy is being advanced by allowing employers to behave in

such a unconscionable way?

For these reasons, I respectfully dissent from the majority’s opinion and

would reverse the summary judgment in favor of the defendant-appellee in order to

allow this issue to be presented before a jury.

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