Johnny Wimbley & Marie Wimbley v. McLiney Centers, L.L.C. D/B/A Sutherlands Home Base

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-305

JOHNNY WIMBLEY & MARIE WIMBLEY

VERSUS

MCLINEY CENTERS, L.L.C., D/B/A

SUTHERLANDS HOME BASE, ET AL.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 266,329
HONORABLE MONIQUE FREEMAN RAULS, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of D. Kent Savoie, Candyce G. Perret, and Ledricka J. Thierry,
Judges.

REVERSED AND REMANDED.

Brian M. Caubarreaux
Emily Gremillion
Brian Caubarreaux & Associates
Post Office Box 129
Marksville, LA 71351
(318) 253-0900
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Johnny Wimbley
Marie Wimbley

Brian T. Butler
C. Reynolds LeBlanc
Keogh, Cox & Wilson, Ltd.
Post Office Box 1151
Baton Rouge, LA 70821
(225) 383-3796
COUNSEL FOR DEFENDANTS/APPELLEES:
McLiney Centers, L.L.C. d/b/a Sutherlands Home Base
Edward Acevedo
Travelers Property Casualty Company of America
The Travelers Indemnity Company

PERRET, Judge.

In this personal injury suit, Johnny and Marie Wimbley (collectively,

“Plaintiffs”) seek review of the trial court’s granting of summary judgments in favor

of defendants, McLiney Centers, LLC, d/b/a/ Sutherlands Home Base (“Sutherlands

HomeBase”), Edward Acevedo, Travelers Property Casualty Company of America,

and The Travelers Indemnity Company (collectively, “the Defendants”). For the

following reasons, we reverse upon finding that there are genuine issues of material

fact as to whether Plaintiffs’ tort claims fall under the intentional act exclusion of

the Workers’ Compensation Act.

FACTS AND PROCEDURAL HISTORY:

On April 23, 2019, Johnny Wimbley (“Mr. Wimbley”), an employee of

Sutherlands HomeBase, was injured while in the course and scope of his

employment at the Sutherlands HomeBase facility in Alexandria, Louisiana. On the

date of the accident, Edward Acevedo (“Mr. Acevedo”), the assistant manager of

lawn and garden at Sutherlands HomeBase, was using a forklift, also known as a

“lift truck,” to put a tiller on the top of a shelf inside the receiving area of the facility.

According to Mr. Acevedo’s deposition, the top shelf was approximately eight to ten

feet off the ground and, as he tried to use the forklift to move the tiller to the back of

the shelf, the tiller tilted and leaned against the wall behind the shelf. Mr. Acevedo

testified that he then tried using the forklift to level the tiller on the shelf but was

unable to do so.

Thereafter, Mr. Acevedo had Mr. Wimbley climb onto the forks of the forklift

and raised him to the top shelf where the tiller was located. Once lifted to the top

shelf, Mr. Wimbley fell and sustained injuries. Specifically, Mr. Wimbley’s petition

states that he “was directed by his manager, [Mr. Acevedo], to work and/or ride on

a platform being lifted to move equipment without safety equipment, when [h]e fell

off of the platform into a shelving unit.”

On September 26, 2019, Plaintiffs filed suit against Mr. Acevedo and

Sutherlands HomeBase, wherein they alleged that the accident was caused by the

fault of the Defendants in the following ways:

a. Ordering JOHNNY WIMBLEY to work and/or ride a platform
without heeding proper safety equipment;

b. Failing to provide and/or post proper safety instructions on the
equipment for the task being completed;

c. Failure to safely operate the subject equipment;

d. Intentionally placing JOHNNY WIMBLEY and other
employees in a perilous and dangerous position;

e. Requiring its employees to work and/or ride the platform and
continue working atop the platform without heeding proper
safety procedures;

f. Failing to train and supervise its employees as to proper safety
equipment, precautions and procedures;

g. Failing to provide and/or require proper safety equipment to be
used by its employees;

h. Failing to require adherence to proper safety procedures by its
employees; and

i. Failing to train its employees and perform adequate safety
meetings.

Plaintiffs alleged that the Defendants “knew that they did not provide the

proper equipment and/or follow proper safety procedures to be used in connection

with the work being performed by JOHNNY WIMBLEY and intentionally failed to

correct known hazardous conditions which would cause great bodily harm[;]” that

they “were substantially certain that their actions and/or inactions would result in

severe personal injury or death and that their actions and/or inactions were extreme,

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outrageous and ultrahazardous, resulting in the injuries of JOHNNY WIMBLEY[;]”

and that “the injuries to JOHNNY WIMBLEY were caused by an intentional tort as

contemplated by Louisiana Law.” On April 5, 2021, the petition was amended to

include, as defendants, Travelers Property Casualty Company of America and The

Travelers Indemnity Company.

On August 18, 2022, Sutherlands HomeBase filed a motion for summary

judgment on the issue of the intentional act exception, arguing that “Louisiana law

provides that under these facts, plaintiff’s exclusive remedy against Sutherlands is

in workers’ compensation.” Sutherlands HomeBase argued that Plaintiffs cannot

meet their high burden to produce evidence to show an intentional act exception to

the Workers’ Compensation Act, which requires the employer to consciously desire

to harm the employee or that it was certain and inevitable that the accident was going

to occur. In support of its motion, Sutherlands HomeBase attached: (1) the

Plaintiffs’ petition for damages; (2) the deposition of Mr. Acevedo; (3) the

deposition of Juan Cruz, Sutherlands HomeBase’s store manager; (4) the deposition

of Mr. Wimbley; (5) the affidavit of Juan Cruz; (6) the deposition of Elizabeth

Wilson (“Ms. Wilson”), an employee of Sutherlands HomeBase’s store; (7) the

deposition of Greg Armstead (“Mr. Armstead”), the assistant manager of

Sutherlands HomeBase’s store; and (8) the deposition of Frank Piper (“Mr. Piper”),

an employee of Sutherlands HomeBase’s store.

On September 20, 2022, the Plaintiffs filed a motion for spoliation of evidence

and requested for the trial court to grant their order “for spoliation of video evidence

thereby casting the defendants with an adverse presumption[.]” In their motion,

Plaintiffs allege that “Former Sutherland’s employee, Elizabeth Wilson, has

provided a detailed description of video surveillance capturing the [April 23, 2019]

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incident from which this suit arises[;]” that “employees of Sutherland’s have

testified that they are not aware of any video surveillance of the subject incident[,]”

that “[o]pposing counsel asserts that the video was not saved due to the default

settings of the store’s video surveillance system” and that the “actions taken by

defendants on [April 23, 2019] prove they knew litigation was imminent as a result

of the incident.” Thus, the Plaintiffs prayed “for an adverse presumption against the

defendants . . . thereby establishing that defendant-manager, Edward Acevedo,

instructed the plaintiff to ride the forks of the forklift approximately ten (10) feet

without a safety harness and re-arrange merchandise.” In support of their motion

for spoliation, Plaintiffs attached the January 19, 2022 deposition of an employee of

Sutherlands HomeBase, Ms. Wilson, who testified that on April 23, 2019, around

5:00 p.m., she watched a video of Mr. Wimbley’s fall while standing in the store’s

camera room along with Mr. Armstead and Mr. Piper.

Plaintiffs also filed an opposition to the Sutherlands HomeBase’s motion for

summary judgment on September 20, 2022, arguing that there are genuine issues of

material fact as to whether the Defendants “knew to a substantial certainty that injury

would occur to Mr. Wimbley from their actions and inactions.” Plaintiffs assert that

“Defendant-manager, Edward Acevedo, intentionally chose to hoist Mr. Wimbley

approximately 10 feet in the air on the fork(s) of a forklift, without a harness, to re-

arrange a tiller on a merchandise shelf despite his actual knowledge that injury is

substantially certain to happen under those circumstances.” In support of their

opposition, the Plaintiffs attached: (1) the deposition of Mr. Wimbley; (2) the

deposition of Mr. Acevedo; (3) the deposition of David Bryant (“Mr. Bryant”); (4)

the deposition of Mr. Armstead; (5) the deposition of Ms. Wilson; and (6) the

deposition of Mr. Piper.

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After a hearing on November 7, 2022, the trial court granted Sutherlands

HomeBase’s motion for summary judgment stating, as follows:

Okay, I’ve read the Memos, and I’ve read the case law. And
based upon the case law, although I feel it was, I guess per se, foolish
what was done, but it does not arise to the act of intentional negligence.
And it has to be intentional negligence for an employee to be
responsible for negligence, as opposed to being responsible for just
Workers Comp. So the Court grants the Motion.

After granting the motion for summary judgment, the trial court ordered

Plaintiffs’ motion for spoliation moot.

Following this ruling, on December 13, 2022, defendants, Mr. Acevedo,

Travelers Property Casualty Company of America, and The Travelers Indemnity

Company, also filed a motion for summary judgment, wherein they make the same

arguments as previously made in Sutherlands HomeBase’s motion for summary

judgment. On January 18, 2023, the Plaintiffs filed an opposition to the remaining

defendants’ motion for summary judgment, alleging the same arguments that were

made in their earlier opposition to the Sutherlands HomeBase’s motion for summary

judgment.

After a hearing on February 6, 2023, the trial court also entered summary

judgment in favor of Mr. Acevedo, Travelers Property Casualty Company of

America, and Travelers Indemnity Company, stating, as follows:

Okay. I’ve read the cases and reviewed all the cases. Again, I
did previously when they came for the first Motion for Summary
Judgment.

And I know Mr. Wimbley and his wife. I’m familiar with them.
I mean we went to school together. So I, I read the cases in thorough
detail, trying to make sure I’m making the right decision. Because I
feel like what happened to him was just a disaster. I feel -- I feel so bad
about what happened to him. But when I read the case law, it keeps
saying, ‘Gross negligence[’] is not an intentional tort. Violation of
OSHA Laws is not an intentional tort. Violation of Safety Rules is not
an intentional tort. And I -- it has to be intentional.

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And I’m just -- the case -- I hate this is the case law, but I just
can’t go[] against the case law. When I read the case law, that’s what
it says, and it’s just -- I can’t see where it was an intentional tort. It was
definitely bad judgment, most definitely. It was foolish what they did,
when you could use one instrument with safety measurements on it, and
get -- put him up on a forklift.

But yet, the forklift is really not what caused the injury, even
though it’s foolish for them to even suggest that he get up on it and go
ten feet (10 ft) high. It’s when he stepped on the shelf. The shelf gave
way is what caused, you know, broke and made him fall. He didn’t
actually fall from the forklift. From everything I read, he fell when he
stepped on the shelf, and the shelf gave way.

RULING OF THE COURT

But nevertheless, this was foolish what they did. But I just can’t
find that it meets the law, it meet the standard of intentional tort. So
that Workers’ Comp would be eliminated.

On February 15, 2023, the trial court issued two separate judgments

dismissing all of the Plaintiffs’ claims against the Defendants.1 The Plaintiffs now

appeal these judgments, alleging the following four assignments of error:

1. The Trial Court erred in granting the defendant[s’] Motions for
[S]ummary [J]udgment by determining the defendants did not act with
“intentional negligence.”

2. The Trial Court erred in granting the defendant[s’] Motions for
Summary Judgment in light of defendants’ intentional choice to place
the plaintiff in a known, injury-causing, predicament.

3. The Trial Court erred in granting the defendant[s’] Motions for
Summary Judgment because there is no genuine issue of material fact
that the defendants knew or should have known that injury would occur
as a result of lifting the plaintiff ten (10) feet without a safety harness
based [on] defendant-manager’s knowledge and experience.

4. The Trial Court erred in granting the defendant[s’] Motions for
[S]ummary [J]udgment in light of the conflicting testimony regarding
whether the plaintiff volunteered or was instructed to perform the task
at issue.

1
The first judgment, signed on February 15, 2023, was only in favor of defendant,
Sutherlands HomeBase. However, on that same date, the trial court issued an additional judgment
dismissing all of the Plaintiffs’ claims against the additional defendants, Mr. Acevedo, Travelers
Property Casualty Company of America, and The Travelers Indemnity Company.

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STANDARD OF REVIEW:

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

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

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

544, 547. Under this standard of review, this court must determine whether there is

a genuine issue of material fact and whether the mover is entitled to judgment as a

matter of law. Id. “A fact is ‘material’ when its existence or nonexistence may be

essential to [a] plaintiff’s cause of action under the applicable theory of recovery.”

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d

730, 751. “[F]acts are material if they potentially insure or preclude recovery, affect

a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.

(alteration in original) (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App.

3 Cir. 1991), writs denied, 596 So.2d 211 (La.1992)).

The burden of proof on a motion for summary judgment rests with the mover:

here, the Defendants. La.Code Civ.P. art. 966(D)(1). In this matter, the Defendants

will not bear the burden of proof at trial; the burden of proof rests with the Plaintiffs.

Thus, once the Defendants properly support their motion for summary judgment,

then under La.Code Civ.P. art. 966(D)(1), they need only point out to the trial court

the absence of factual support for one or more elements essential for the Plaintiffs to

establish an intentional act exception to the Workers’ Compensation Act.

Thereafter, the burden shifts to the Plaintiffs “to produce factual support

sufficient to establish the existence of a genuine issue of material fact or that the

[Defendants are] not entitled to judgment as a matter of law.” La.Code Civ.P. art.

966(D)(1). The Plaintiffs “may not rest on the mere allegations or denials of [their]

pleading, but [their] response . . . must set forth specific facts showing that there is

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a genuine issue for trial. If [they] [do] not so respond, summary judgment, if

appropriate, shall be rendered against [them].” La.Code Civ.P. art. 967(B).

DISCUSSION:

Under the Louisiana Workers’ Compensation Act, an employer is liable for

compensation benefits to an employee who is injured as a result of an accident

arising out of and in the course of his employment. La.R.S. 23:1031. The rights and

remedies of an employee and an employer’s liability are set forth in La.R.S. 23:1032,

which provides in pertinent part:

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 . . . .

....

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.

In Bazley v. Tortorich, 397 So.2d 475, 481–82 (La.1981), the Louisiana

Supreme Court addressed the “intentional act” exception and stated, in pertinent part

(internal citations omitted) (emphasis added):

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.

....

[W]e construe the legislation [La.R.S. 23:1032] under review as
providing that the exclusive remedy rule shall be inapplicable to
intentional torts or offenses. The meaning of intent in this context is
that the defendant either desired to bring about the physical results of

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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.

An explanation of what constitutes an intentional act causing an intentional

injury was also expressed in W. Prosser, Law of Torts, § 8 (4th ed. 1971), stating, in

pertinent part:

The man who fires a bullet into a dense crowd may fervently pray that
he will hit no one, but since he must believe and know that he cannot
avoid doing so, he intends it. The practical application of this principle
has meant that where a reasonable man in the defendant’s position
would believe that a particular result was substantially certain to follow,
he will be dealt with by the jury, or even by the court, as though he had
intended it.

In this case, we find the trial court’s reasons for granting the motions for

summary judgment focused on whether the Defendants consciously desired to bring

about Mr. Wimbley’s injuries, and it is unclear whether the trial court considered the

second prong of the Bazley test, i.e., whether the Defendants knew, or should have

known, that Mr. Wimbley’s injuries were substantially certain to follow from Mr.

Acevedo’s actions on April 23, 2019. Plaintiffs do not allege that the Defendants

consciously wanted to cause harm to Mr. Wimbley; rather, they assert that Mr.

Wimbley’s injuries were substantially certain to follow from Mr. Acededo’s

conduct.

In the opposition to summary judgment, the Plaintiffs alleged the following

undisputed material facts (footnotes omitted):

1. Defendant-manager, Edward Acevedo, chose to lift the plaintiff
while standing on the forks of the forklift to the top shelf in the store’s
receiving area.

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2. An “order picker” is the proper equipment to use under the
circumstances.

3. An order picker was available at the store at the time of the incident
and approximately 15 feet away from the area of the subject incident.

4. Defendant, Edward Acevedo, chose not to use the order picker
despite its availability.

5. Multiple employees testified that it is well-known that an individual
is forbidden to ride on the forks of a forklift because it is forbidden by
OSHA standards as well as Sutherland’s policies and procedures.

6. Defendant-manager, Acevedo, was aware of Sutherland’s policy and
procedures requiring that all employees use a harness at heights more
than 4 feet.

7. Plaintiff fell from approximately 8 to 10 feet high.

8. Plaintiff was not provided a harness or any other fall arrest system.

9. Plaintiff sustained severe injuries necessitating knee replacement,
cervical steroid injections, left finger surgery, and psychological injury.

In support of their opposition, Plaintiffs cite to the November 3, 2020

deposition of Mr. Wimbley’s manager, Mr. Acevedo, to argue that there are genuine

issues of fact as to whether Mr. Acevedo’s actions of lifting Mr. Wimbley above

eight feet, without safety equipment, would inevitably cause severe bodily injury.

Specifically, Mr. Acevedo testified in his deposition as follows:

Q. So why didn’t you get the order picker?

A. I guess against my judgment, Johnny was on the fork telling me,
“Come on. Raise me. Raise me. Raise me. We’ll get it done
quicker.”

....

Q. You were operating and could have refused to raise the forklift;
correct?

A. Correct.

....

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Q. So what are the reasons for using an order picker over a reach
truck [aka forklift]?

A. Safety.

Q. And when you say “safety,” what do you mean?

A. You have to be harnessed into the [order picker], harnessed into
the order picker.

Q. And what is the reason for harnessing?

A. So you don’t fall and hurt yourself.

Q. And does the reach truck [forklift] have a harness?

A. No, sir.

Q. Does the reach truck [forklift] have a safety clip?

A. No, sir.

Q. Does the reach truck [forklift] have any safety features when
you’re standing on the forks?

A. No, sir.

Q. There’s no rails?

A. Just two forks.

Q. You testified that if you’re higher than 4 feet - - if an employee
is higher than 4 feet, they’re required to be harnessed?

A. Yes, sir.

Q. Was Mr. Wimbley higher than 4 feet?

A. Yes, sir.

Q. Did you know the 4-foot rule at the time of the accident?

A. Yes, sir.

Q. And you ignored that rule at the time of the accident?

A. Against my judgment, yes, sir.

....

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Q. If somebody falls from 10 feet, you would expect them to get hurt?

....

A. In some form, they will get hurt. Maybe a sore muscle, maybe a sprain.

Mr. Acevedo also testified that an “order picker” was available at the store at

the time of the incident and was located between fifteen and twenty feet away from

the area of the subject incident.

Plaintiffs also cite to the deposition testimony of Mr. Bryant, Sutherlands

HomeBase’s employee and a licensed forklift operator, to create a genuine issue of

fact as to whether Mr. Wimbley’s injuries were substantially certain to follow from

Mr. Acevedo’s actions of having Mr. Wimbley raised on a forklift, approximately

ten feet in the air, without a safety harness. Specifically, Mr. Bryant testified as

follows:

Q. All right. Now in the safety program, you’re familiar with that?

A. Yes, sir.

Q. Does it tell you not to put people on the forks of a forklift and
put them in the air?

A. Yes, sir.

Q. And you knew that as a forklift operator?

A. Yes, sir.

Q. Have you ever done that?

A. No, sir.

....

Q. If you had to get on a lift to raise yourself or someone else in
the air, what kind of equipment would you use?

A. We got a lift on the side of the store, it’s called an order picker,
you know, it self operates.

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Q. So, it’s an order picker?

A. Yes, sir.

Q. And it’s got a D-ring to tie off on with a harness?

A. Yeah. You put a safety harness on there, you got a pallet, you
know. If you need to put materials on it, it’s got a pallet right
behind it where you can just put your materials on it and stuff,
whatever you need.

Q. Okay. But to use that before you go up, is it the policy and procedure
of Sutherland’s to have a harness on?

A. Yes, sir. Before you even turn the key to crank it up.

....

Q. Is that on every piece of equipment where a human is being lifted off
the ground?

A. Yes, sir.

Q. And to do that would be a direct violation of the safety procedures at
Sutherland’s?

A. Yes, sir.

Q. Do you think all the managers at Sutherland’s know that?

A. Yes, sir.

....

Q. In that time period where Mr. Wimbley got hurt and right before that,
were there safety meetings such as that?

A. Yes, sir. We had safety meetings.

Q. Okay. You said they discussed the forklift. Did they discuss don’t pick
people up on forklifts?

A. Yes, sir. Yes, sir.

Q. And it was a mandatory meeting?

A. Mandatory, yes, sir.

Q. Did they say why? Because people could fall?

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A. Yeah. Hurt themselves or, you know, somebody could get killed or
anything like that.

Q. So don’t raise people up on that?

A. That’s not allowed.

Plaintiffs also relied upon the deposition testimony of Mr. Armstead, an

assistant manager for seventeen years at Sutherlands HomeBase, who testified that

he would not put an employee on a forklift and raise him off the ground.

Specifically, Mr. Armstead testified, in pertinent part:

Q. As a supervisor would you, sir, ever put a co-employee on the forks of
a forklift and raise them off the ground?

A. No, sir.

Q. And why would you not do that?

A. Because that’s what it says in the manual and that’s not safe.

Q. What are the consequences of doing that for an employee, or any other
person for that matter?

A. Well, if you do it, you’ll get fired and an employee will probably get
hurt.

We find Plaintiffs produced sufficient evidence to create genuine issues of

material fact regarding whether the Defendants knew, or should have known, that

Mr. Wimbley’s injuries were “substantially certain” to occur due to the actions of

Mr. Wimbley’s manager, Mr. Acevedo’s, on April 23, 2019. “If there is

circumstantial evidence from which one could reasonably infer that the act was

intentional, weighing of factual evidence regarding the alleged intentional act is

inappropriate on a motion for summary judgment.” Evans v. Bossier Par. Sch. Bd.,

39,718, p. 5 (La.App. 2 Cir. 5/11/05), 903 So.2d 600, 604 (citing Lyons v. Airdyne

Lafayette, Inc., 563 So.2d 260 (La.1990)). See Williams v. Ingredient Tech. Corp.,

470 So.2d 283 (La.App. 5 Cir. 1985) (wherein the court reversed summary judgment

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for the defendants due to issues of fact regarding whether the supervisor employee

must have believed and known that injury was substantially certain to result from

his actions and instructions); and McDonald v. Gonzales, 479 So.2d 9 (La.App. 5

Cir. 1985) (wherein the court reversed summary judgment due to issues of fact

regarding whether foreman who ordered painter to continue working after his

complaints of dizziness was substantially certain that the result would follow).

Because we find genuine issues of material fact exist in this matter, we hereby

reverse the trial court’s judgments granting summary judgment. As such, we remand

this matter to the trial court for it to address Plaintiffs’ September 20, 2022 motion

for spoliation, which was rendered moot by the granting of summary judgments, and

for the court to hold a trial on the merits of the case. Costs of this appeal are assessed

to the Defendants.

REVERSED AND REMANDED.

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