Louis Guillory v. City of Lake Charles

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

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LOUIS GUILLORY, ET AL.

VERSUS

CITY OF LAKE CHARLES

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-1538
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

AFFIRMED.

Leonard Knapp, Jr.
P. O. Box 1665
Lake Charles, LA 70602
Telephone: (337) 439-1700
COUNSEL FOR:
Plaintiffs/Appellants - Louis Guillory, Dianna Simien, and Onzeletta
Marks

Joseph Arthur Smith, III
Adrienne Rachel
Smith Law Firm
830 North Street
Baton Rouge, LA 70802
Telephone: (225) 383-7716
COUNSEL FOR:
Plaintiffs/Appellants - Louis Guillory, Dianna Simien, and Onzeletta
Marks

Christopher E. John
Assistant City Attorney
P. O. Box 900
Lake Charles, LA 70602-0900
Telephone: (337) 491-1523
COUNSEL FOR:
Defendant/Appellee - City of Lake Charles

THIBODEAUX, Chief Judge.

Plaintiffs/appellants and city bus drivers, Louis Guillory and Dianna

Simien, filed suit against the City of Lake Charles alleging that the City committed

an intentional act by requiring them to drive defective buses, which led to severe

injury. Plaintiffs contend that the City’s conduct invokes the intentional act

exception to the Workers’ Compensation Act (Act), La.R.S. 23:1032(B), and that

they are entitled to sue in district court. The City filed a Motion for Summary

Judgment in which it argued that the Plaintiffs were limited to a workers’

compensation remedy. The trial court granted the motion, and Plaintiffs appeal.

For the following reasons, we affirm.

I.

ISSUES

We will consider whether the trial court erred in granting summary

judgment to the City.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Guillory and Ms. Simien, Plaintiffs, were city bus drivers for

many years, and had complained about the buses several times. According to

Plaintiffs, the seats and other parts of the buses were poorly maintained and

provided a bumpy and dangerous ride for the drivers. After years of experiencing

the jolting effects of the seats, Plaintiffs sustained severe back and neck injuries.

To date, Mr. Guillory has received $271,173.10 in wage and medical workers’

compensation benefits, and Ms. Simien has received $19,843.92. Plaintiffs allege

that the City knew their injuries were substantially certain and still refused to repair

the buses. Plaintiffs filed suit in district court, asserting that the City’s conduct

falls under the intentional tort exception to the Act. The City’s Motion for

Summary Judgment contended that the Act provides Plaintiffs’ only remedy. The

trial court granted the motion, and Plaintiffs appeal.

III.

LAW AND DISCUSSION

Standard of Review

We review a grant of summary judgment de novo “using the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate, i.e., whether there is a genuine issue of material fact and whether the

mover is entitled to judgment as a matter of law.” Supreme Servs. and Specialty

Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638. If

the mover will not bear the burden of proof at trial on the matter, then he must

present evidence showing a lack of factual support for one or more elements

essential to the non-mover’s case. La.Civ.Code art. 966(C)(2); Simien v. Med.

Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, writ denied, 09-

1488 (La. 10/2/09), 18 So.3d 117. Once the mover has made a prima facie case

that the motion should be granted, the non-mover must then present evidence

sufficient to show a genuine issue of material fact. Id. If the non-mover fails to

present some evidence that he might be able to meet his burden of proof, the

motion should be granted. Id.

Discussion

Plaintiffs argue that the Act’s exclusivity requirement is inapplicable

because the City knew they would be injured if they continued to drive buses with

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defective transmissions, shocks, and seats. We disagree. The Workers’

Compensation Act shields employers from civil liability stemming from employees

who are injured in the course and scope of their employment; the Act provides the

exclusive remedy to such employees. La.R.S. 23:1032(A). The exclusivity

provisions do not apply, however, if the injury resulted from an intentional act.

La.R.S. 23:1032(B). An intentional act in this context has the same meaning as an

intentional tort; that is, the person who acts either “(1) consciously desires the

physical result of his act[;] . . . or (2) knows that the result is substantially certain

to follow from his conduct, whatever his desire may be as to that result.” Bazley v.

Tortorich, 397 So.2d 475, 481 (La.1981). The Louisiana Supreme Court has

interpreted the intentional act exception narrowly. Substantial certainty “requires

more than a reasonable probability that an injury will occur;” specifically, it means

an injury is inevitable or incapable of failing. Reeves v. Structural Pres. Sys., 98-

1795, p. 9 (La. 3/12/99), 731 So.2d 208, 213 (quoting Jasmin v. HNV Central

Riverfront Corp., 94-1497 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, 312).

In the first instance, we find that even if all of Plaintiffs’ allegations

prove true, this conduct does not rise to the level of an intentional tort. The

intentional act exception is measured against an increasingly high standard. The

exception was found inapplicable in many cases analogous to this one, specifically

where an employer: failed to provide safety equipment; failed to remedy a

situation in which an electrical shock resulted every time someone touched a

specific door; maintained a forklift in an unsafe condition; and allowed workers to

use a dangerous machine with a high probability of injury. See Reeves, 731 So.2d

208; Castro v. Fred’s Painting, Inc., 96-405 (La.App. 5 Cir. 1/15/97), 688 So.2d

72, rev’d, 97-0374 (La. 4/4/97), 692 So.2d 408; Leger v. Hardy Rice Drier, Inc.,

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93-1512 (La.App. 3 Cir. 6/1/94), 640 So.2d 650; Holliday v. B.E. & K. Const. Co.,

563 So.2d 1333 (La.App. 3 Cir. 1990).

Even if Plaintiffs’ supervisors had actual knowledge to a substantial

certainty that the faulty driver’s seats were not repaired and were continually

causing injury to the drivers, Plaintiffs would not be entitled to sue, according to

our jurisprudence. Out of an abundance of caution, however, we will address

Plaintiffs’ arguments.

Plaintiffs rely on the Louisiana First Circuit Court of Appeal’s

decision in Abney v. Exxon Corp., 98-911 (La.App. 1 Cir. 9/24/99), 755 So.2d 283,

writ denied, 99-3053 (La. 1/14/00), 753 So.2d 216 to support their position. In that

case, the plaintiffs were hired to perform welding and gouging on a fractionation

tower with poor ventilation and no safety equipment. The plaintiffs were

constantly exposed to known carcinogens and experienced nose bleeds and other

symptoms every time they went to work. Id. This exposure forced the plaintiffs to

quit their jobs after only several weeks. That court held that when an employer

knows of the risks and repeatedly sends an employee back to work without safety

equipment or remedial measures being taken, the intentional act exception applies.

Id.

Abney is inapplicable to the instant case. In Abney, the employer

refused to remedy the hazardous situation and refused to implement specific

recommended safety measures. In this case, on the other hand, Plaintiffs admit

that their supervisors submitted the buses for repairs whenever the drivers

complained. In fact, the City has presented dozens of work orders indicating that

Plaintiffs’ supervisors went through the appropriate channels to ensure the buses

were regularly maintained. The City clearly attempted remedial measures, even if

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those measures were ultimately unsuccessful. As the court in Abney explained,

“remedial measures attempted by the employer negate any intent on its part that an

injury would occur.” Id. at 288-89. Failing to follow up on requested repairs does

not rise to the level of an intentional tort.

Plaintiffs point to their supervisors’ knowledge that they had

experienced back and neck injuries in the past as evidence of intent. Although

prior injury is a factor to consider in the substantial certainty test, it is not

dispositive. Further, “[b]elieving that someone may, or even probably will,

eventually get hurt if a workplace practice is continued does not rise to the level of

an intentional act.” Reeves, 731 So.2d at 212. The City’s knowledge of Plaintiffs’

injuries did not require it to do anything more than submit the buses for repair and

maintenance, which it did.

The City did not commit an intentional act by failing to follow up on

the buses’ maintenance and repairs. We find there is no genuine issue of material

fact and Plaintiffs’ claims fall exclusively within the purview of the Workers’

Compensation Act.

IV.

CONCLUSION

For the reasons above, we affirm the trial court’s grant of summary

judgment to the City of Lake Charles. Costs of this appeal are assessed against

Appellants, Louis Guillory and Dianna Simien.

AFFIRMED.

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