Melody P. Smith v. Marcus Sam

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-664

MELODY P. SMITH

VERSUS

MARCUS SAM, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20144879
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion ,
and John E. Conery, Judges.

THIBODEAUX, Chief Judge, concurs in the result.

AFFIRMED.

Gloria A. Angus
Angus Law Firm, LLC
P. O. Box 2337
Opelousas, LA 70571
(337) 948-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Melody P. Smith

Lance Edward Harwell
Staines & Eppling
3500 North Causeway Blvd. Suite 820
Metairie, LA 70002
(504) 838-0019
COUNSEL FOR DEFENDANT/APPELLEE:
Circle K Stores, Inc.

GREMILLION, Judge.

Melody Smith, 1 the plaintiff-appellant, appeals the trial court’s judgment

granting summary judgment in favor of the defendant-appellee, Circle K Stores, Inc.

For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Smith, who was a manager-trainee of Circle K, was robbed at gunpoint by

Marcus Sam while attempting to make a bank deposit for Circle K. Smith, who has

collected workers’ compensation benefits since the incident, filed a petition for

damages against Sam and Circle K amongst others. Circle K thereafter filed an

exception of no right of action/no cause of action and motion for summary judgment

urging that Smith’s only remedy existed in workers’ compensation and that Smith

would not be able to prove that an intentional tort was committed by Circle K. Smith

filed an amended and supplemental petition alleging that the Circle K manager was

“substantially certain” that Smith would be robbed after instructing Smith to make

the deposit in front of Sam. The petition further alleged that Sam was the boyfriend

of Smith’s co-worker. Smith further claimed that the robbery was inevitable due to

the announcement in front of customers. Smith’s amended petition states:

Circle K Stores committed intentional torts of assault and/or
battery on Plaintiff, Melody Smith, because it was substantially
certain that one within earshot of hearing that a person is making a
money deposit to the bank would be robbed by an armed person, and
as a consequence, it was substantially certain that its employee
would be shot and wounded or killed in the process of a robbery.

Smith concedes that the manager did not intend for the robbery to occur but

that she was substantially certain it would occur. At a December 2014 hearing, the

trial court indicated that summary judgment was premature and that Smith should be

allowed discovery before it ruled on the motion.

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Smith also filed suit on behalf of her children, Miranda Roberts, Keyana Freemen, and
Peyton Jolivette.

In July 2016, after discovery deadlines had lapsed, Circle K filed another

motion for summary judgment urging that Smith’s tort claim was barred by the

exclusive remedy provisions of the LWCA and that Smith had not “taken a single

deposition, obtained a single affidavit, produced a public record or otherwise taken

any action to support her claim of a conspiracy or to otherwise show that Circle K

was substantially certain that Smith would be injured in a robbery.”

Following an October 2016 hearing, the trial court rendered judgment in

November 2016 granting summary judgment in favor of Circle K. Smith now

appeals and assigns as error:

1. Granting a Summary Judgment in a case involving examination
of a person’s knowledge, intent or credibility when it was
demonstrated by the plaintiff that the manager’s intent was to
bring about harm to the appellant; and

2. Granting a summary judgment after Appellant brought forth
evidence to support her shifting burden of proof that a material
issue of fact exists as to whether the managers’ acts were
intentional and the defendant’s only arguments [sic] is that the
plaintiff cannot prove her case.

DISCUSSION

We review a trial court’s grant of summary judgment de novo using the same

legal standards applicable at the trial court level. Lewis v. Old Republic Ins. Co., 17-

456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557. The mover bears the burden of proving

that summary judgment should be granted in its favor, but if the mover will not bear

the burden of proof at trial, it need only point out the other party’s inability to prove

an element of her case. La.Code Civ.P. art. 966(D)(1). The other party must provide

some evidence establishing that a genuine issue of material fact exists such that

summary judgment is inappropriate. Id.

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Pursuant to La.R.S. 23:1032(A)(1)(a), an employee’s exclusive remedy for

accident or injury occurring in the workplace is via workers’ compensation unless

an intentional tort has been committed. The seminal case defining an intentional tort

is Bazley v. Tortorich, 397 So.2d 475 (La.1981).

The meaning of intent in this context is that the defendant either
desired to bring about the physical results of his act or believed they
were substantially certain to follow from what he did. Several courts
of appeal have stated the two prongs of the definition in the
conjunctive, thus requiring a plaintiff to prove, in order to recover,
that the defendant desired the physical results of his act in every case.
Intent is not, however, limited to consequences which are desired. If
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 (citations omitted).

Even “reckless or wanton conduct or gross negligence” does not amount to

intent. Blevins v. Time Saver Stores, Inc., 99-383 (La.App. 5 Cir. 10/26/99), 746

So.2d 191, 193. The intentional act exception is narrowly construed. Id. The term

“substantially certain” has been discussed by Louisiana courts numerous times, and

it is clear that in order for an action to have been substantially certain to result in a

certain consequence, the outcome must have been “nearly inevitable,” “virtually

sure,” and “incapable of failing.” Id. at 193.

We have reviewed the record and find that Smith has not produced any

evidence whatsoever to suggest, much less prove, that an intentional tort occurred,

despite being given ample time to do so. Instead, we have multiple assertions in

various documents filed by Smith that are unsupported by any type of evidence.

Smith’s brief lists eleven “material issues of disputed facts” alleging things that the

store manager knew such as:

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1. The Circle K store manager told Appellant to make the
deposit on September 21, 2013, the day of the robbery because the
Circle K manager was certain that she (Circle K manager) would be
robbed that same day by that robber, Marcus Sam;

2. Circle K manager, as well as any reasonable prudent person,
is certain that if you tell a robber the date, time and place of your
next deposit, that the same robber will rob you.

3. The Circle K manager, as well as the general public, knows
that Marcus Sam is a known drug abuser;

4. The Circle K manager, as well as the general public, knows
that the robber is a known criminal;

5. The Circle K manager, as well as the general public, knows
that the robber commits all types of criminal activities to support his
drug addiction;

6. The Circle K manager knows that, given the opportunity,
the robber would rob anyone to support his drug addiction;

(Footnotes omitted).

Smith further makes assertions referencing Sam’s sentencing hearing where it

was determined that he was in the store and was a known habitual offender. Smith

claims the “Store manager knew that Melody Smith would be robbed by Marcus

Sam after she instructed Melody Smith to make the deposit in front of Marcus Sam.”

However, she produces no evidence whatsoever such as an affidavit or deposition

testimony of any person or employee, including the store manager who is referenced

by her first name only.

Even if we accepted Smith’s argument as true that the store manager requested

in front of store patrons that Smith make the deposit, this act would not rise to the

level of an intentional act required to circumvent the application of the exclusive

remedy of workers’ compensation. There simply is no evidence in the record to

suggest what the store manager knew or intended. Smith then makes various

allegations that “everyone” knows Sam is a drug addict who will do anything to

support his habit and, therefore, the store manager should have known Smith would
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be robbed. Again, however, there is no evidence of what the store manager knew,

only various unsubstantiated allegations by Smith.

The record is devoid of any evidence indicating that the Circle K store

manager intended or was substantially certain that Smith would be robbed by Sam

while making a deposit at the bank. Smith has failed to show that a genuine issue of

material fact exists. Accordingly, the trial court did not err in granting summary

judgment in favor of Circle K.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Circle

K Stores, Inc. is affirmed. All costs of this appeal are assessed against plaintiff-

appellant, Melody Smith

AFFIRMED.

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