Tara Rico v. Kevin Warren

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
P.O. Box 16577
Lake Charles LA 70616
(337) 433-9403

NOT DESIGNATED FOR PUBLICATION

REHEARING ACTION: January 30, 2008

Docket Number: 07 00991-CW

TARA RICO, ET AL.
VERSUS
KEVIN WARREN, ET AL.

Writ Application from Avoyelles Parish Case No. C-2006-9168

H. O. Lestage, III Counsel for:
American Interstate Insurance Company
Kevin Warren
Rodney Lee Johnson
Tina Johnson

Donald Coleman Brown Counsel for:
Colony Insurance Company

Brian M. Caubarreaux Counsel for:
Tara Rico
Derek Rico
Kasey Rico

As counsel of record in the captioned case, you are hereby notified that the application

for rehearing filed by Tara Rico has this day been granted.

REHEARING GRANTED; WRIT DENIED. On rehearing, we
find no error in the trial court’s ruling. We find a genuine issue of
material fact exists as to whether defendant knew that death or injury
was “substantially certain” to occur as a result of the employer’s
conduct. See Clark v. Division Seven, Inc., 99-3079 (La.App. 4 Cir.
12/20/00), 776 So.2d 1262, writ denied, 01-0183 (La. 3/16/01), 787
So.2d 318; Trahan v. Trans-Louisiana Gas Co., 618 So.2d 30
(La.App. 3 Cir. 1993); Wainwright v. Moreno’s Inc., 602 So.2d 734
(La.App. 3 Cir. 1992). Whether the conduct was substantially certain
to follow is an issue to be determined by the trier of fact.

__________ __________ __________ __________
S.R.C. G.B.G E.A.P. B.H.E.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
P.O. Box 16577
Lake Charles LA 70616
(337) 433-9403

SULLIVAN, J., dissents. I find that the trial court erred in denying
the motion for summary judgment filed by Relators, Kevin Warren,
American Interstate Insurance Company, and Rodney Lee Johnson
and Tina Johnson d/b/a Quality Tank Service. “Summary judgment is
appropriate when all relevant facts are brought before the court, the
relevant facts are undisputed, and the sole remaining issue relates to
the legal conclusion to be drawn from the facts. LSA-C.C.P. art. 966.”
James v. Red Simpson, Inc., 03-0304 (La.App. 3 Cir. 10/1/03), 856
So.2d 115, 117. In the case at bar, there are no factual issues in
dispute. The only issue in dispute is a legal one, i.e. whether the
undisputed facts support a legal finding that Relators were
“substantially certain” that the placement of improper choker cables
on the platform used to ascend and descend a water tank would result
in the death of their employee, Danny Rico. “An employer's mere
knowledge that a machine is dangerous and that its use creates a high
probability that someone will eventually be injured is not sufficient to
meet the substantial certainty requirement.” Perret v. Cytec
Industries, Inc., 04-745 (La.App. 5 Cir.11/30/04), 889 So.2d 1121,
1124 (citation omitted). “Substantial certainty” requires that an
outcome be "inevitable" or "incapable of failing." Id. Under the facts
of the instant case, I find that Relators’ conduct does not rise to the
level of constituting an intentional act under La.R.S. 23:1032(B).
Accordingly, I would reverse and set aside the trial court’s ruling
denying Relators’ motion for summary judgment and would render
judgment in favor of Relators, granting their motion for summary
judgment and dismissing all claims against Relators with prejudice at
Plaintiff’s cost.