Michael Smith, Et Ux. v. St. Landry Parish Solid Waste Disposal District

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-946

MICHAEL SMITH, ET UX.

VERSUS

ST. LANDRY PARISH SOLID
WASTE DISPOSAL DISTRICT, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 09-C-2222-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Michael C. Palmintier
Degravelles, Palmintier, Holthaus, & Frugé, L.L.P.
618 Main Street
Baton Rouge, LA 70801-1910
(225) 344-3735
Counsel for Plaintiffs/Appellants:
Michael Smith
Ernesta Smith

James D. Hollier
Jason T. Reed
Laborde & Neuner
P. O. Drawer 52828
Lafayette, LA 70505-2828
(337) 237-7000
Counsel for Defendants/Appellees:
St. Landry Parish Solid Waste Disposal District
Katry Martin

DECUIR, Judge.

Michael and Ernesta Smith filed suit against the St. Landry Parish Solid

Waste Disposal District and its supervisor, Katry Martin, after their son, Martel

Smith, was killed while working at the St. Landry Sanitary Landfill. The trial

court granted summary judgment in favor of the defendants, finding the Smiths

failed in their burden of proving the intentional act exception to workers’

compensation immunity. The Smiths appealed, and for the following reasons, we

affirm.

On April 22, 2008, Martel Smith was working with fourteen other

employees at the landfill, a two-hundred acre site with restricted access to the

public. Martel was assigned to dump canisters that day and was working alone

using a Mack Econodyne roll off truck with a tilting bed operated by a hoist

mechanism. In the early afternoon, another employee found Martel crushed

between the hoist and the frame of the truck. Several workers freed Martel and

placed his body on the ground nearby. Efforts to resuscitate him were

unsuccessful.

A number of Martel’s co-employees were perplexed by the accident,

testifying by deposition that Martel could not have operated the controls himself in

the position in which he was discovered. Other employees thought it possible that

Martel might have climbed onto the frame to investigate something on the truck

and his leg could have accidentally engaged the controls. The plaintiffs’ expert

explained that the controls have to be held down continuously with constant

pressure or a spring mechanism will stop the movement of the hoist and return the

bed to its original position. The expert opined that a third party must have been

involved, as Martel could not have engaged the hoist on his own. All co-

employees testified by deposition or affidavit that they were not present at the time

of Martel’s death and had no knowledge of any other person who may have

witnessed the events leading up to Martel’s death. The repair records in evidence

point to no malfunction in the truck, and it was put back into service at the landfill

after the accident.

The Smiths contend the defendants are responsible for an intentional act

which caused Martel’s death and serves as an exception to the workers’

compensation exclusive remedy provisions. Essentially, they suggest Martel was

murdered by an unnamed co-employee. That employee, identified only as John

Doe, must have lured Martel into a position between the hoist and the frame of the

truck, then held down the controls for nearly a minute while Martel remained in

position as the bed slowly came down on him. The trial court found the Smiths

failed to set forth specific facts demonstrating a genuine issue of material fact, and

summary judgment was granted in the defendants’ favor. The trial court

characterized the plaintiffs’ theory as the stringing of speculative possibilities

insufficient to meet the shifting burden of proof on summary judgment.

In order to establish the intentional act exception, a plaintiff must show that

the employer “either 1) consciously desires the physical result happening from his

conduct, or 2) knows that the result is substantially certain to follow from his

conduct.” Smith v. Tanner Heavy Equipment Co., Inc., 01-886, p. 1 (La. 6/15/01),

790 So.2d 615, 615. In support of their motion for summary judgment, the

defendants presented the testimony of Martel’s co-employees, each of whom stated

that he was not near Martel at the time of his death and did not cause or contribute

to his death in any way. By showing that no one employed by the landfill was near

Martel at the time of the accident, the defendants argue that the employer could not

have consciously desired his death or known that his death was substantially

certain to follow some undescribed conduct. This undisputed evidence

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demonstrated no issue of material fact with regard to the actions of the co-

employees.

The burden of proof then shifted to the plaintiffs to set forth specific facts

which demonstrate a genuine issue for trial. The Smiths argue that each co-

employee’s statement fails to negate the possibility that another employee could

have caused the death. They also rely on their expert’s opinion that Martel, more

likely than not, could not have caused his own death. These are not specific facts.

Throughout the record, there are suggestions as to what might have caused

Martel’s death: a practical joke gone awry, murder by a co-employee, murder by a

member of the public in an unauthorized area, suicide, mechanical failure, or

Martel’s leg inadvertently engaging the controls while he examined something on

the truck. The Smiths have been unable to set forth any specific facts which would

prove one theory over another.

Accordingly, we find no error in the determination that summary judgment

was appropriate in this case. The plaintiffs cannot sustain their burden of proof

with mere possibilities. Even relying on the truth of the expert opinion that Martel

“more likely than not” could not have caused his own death does not establish a

genuine issue regarding the employer’s alleged intentional and conscious desire to

cause Martel’s death. This court addressed the plaintiff’s burden of proof in a

similar intentional act case:

Even if Plaintiffs succeed in demonstrating the presence of
some remaining asbestos in the work area, which Constructors
vehemently denies, the Plaintiffs have not presented any facts to raise
a genuine dispute that Constructors intentionally and consciously
desired that they be exposed to asbestos or that Constructors knew,
that by requiring Plaintiffs to continue on the job, exposure to asbestos
was inevitable or substantially certain to occur.

In support of its motion for summary judgment, Cleco offered
the affidavits of its own representatives stating that Constructors was
responsible for the renovation work and denying any intent on the part
of Cleco to expose Plaintiffs to asbestos. The Plaintiffs did not offer
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any evidence to refute the affidavits of Cleco. Accordingly, we affirm
the decision of the trial court granting Constructors and Cleco’s
motion for summary judgment.

Vidrine v. Constructors, Inc. 06-544, p. 9 (La.App. 3 Cir. 3/21/07), 953 So.2d 193,

199, writs denied, 07-821, 07-883 (La. 6/15/07), 958 So.2d 1189, 958 So.2d 1196.

Additionally, we reject the plaintiffs’ suggestion that the doctrine of res ipsa

loquitur encompasses their allegations of an intentional act. To the contrary, res

ipsa loquitur, by definition, contemplates an inference of negligence on the part of

the defendant if certain evidentiary criteria are met. For instance, if the

circumstantial evidence “sufficiently eliminates other possible causes of the injury,

such as the plaintiff’s own responsibility or the responsibility of others,” then the

rule of res ipsa loquitur may be invoked, if other criteria are met, to allow the jury

to infer negligence. Linnear v. Centerpoint Energy Entex/Reliant Energy, 06-3030,

p. 12 (La. 9/5/07), 966 So.2d 36, 45. See also, Cangelosi v. Our Lady of the Lake

Reg’l Med. Ctr., 564 So.2d 654 (La.1990).

The evidence presented in this case does not eliminate other possible causes

of Martel’s death. Further, the res ipsa loquitur doctrine does not encompass a

defendant’s intent and is simply inapplicable in an intentional act case.

For the above and foregoing reasons, the judgment of the trial court is

affirmed. Costs of the appeal are assessed to the plaintiffs.

AFFIRMED.

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