White v. Monsanto Co.

• Citation: 585 So.2d 1205
• Decision Date: 09 September 1991
• Docket Number: No. 91-C-0148,91-C-0148
• Parties: Irma WHITE v. MONSANTO COMPANY and Gary McDermott. 585 So.2d 1205, 60 U.S.L.W. 2236, 6 Indiv.Empl.Rts.Cas. (BNA) 1340
• Court: Supreme Court of Louisiana

Page 1205

585 So.2d 1205

Irma WHITE v. MONSANTO COMPANY and Gary McDermott.

No. 91-C-0148.

585 So.2d 1205, 60 U.S.L.W. 2236,

6 Indiv.Empl.Rts.Cas. (BNA) 1340

Supreme Court of Louisiana.

Sept. 9, 1991.

Rehearing Denied Oct. 10, 1991.

Concurring in Denial of Rehearing Oct. 11, 1991.

Norman A. Mott, III, James A. Nugent, Littler, Mendelson, Fastiff & Tichy, for defendant-applicant.

Gerald E. Meunier, Gainsburgh, Benjamin, Fallon, & Ates, for plaintiff-respondent.

Clyde H. Jacob, III, Kullman, Inman, Bee, Downing & Banta, for Louisiana Ass'n of Business and Industry, amicus curiae.

HALL, Justice.

Writs were granted in this case to review a judgment of the court of appeal affirming an award of $60,000 damages to an employee against her employer and a supervisory co-employee for intentional infliction of emotional distress occasioned by the supervisor's profane outburst while dressing down the employee and two other employees for not working as he thought they should. Finding that the supervisor's conduct, although crude and uncalled for, was not of such an extreme or outrageous nature as to give rise to a cause of action for an intentional tort, we reverse and render judgment for the defendants.

I.

Plaintiff, Irma White, a church-going woman in her late forties with grown children, was employed in the labor pool at Monsanto Company's refinery for several years. In the spring of 1986, she had been assigned to work in the canning department for several weeks. Defendant, Gary McDermott, a long-time Monsanto employee, was industrial foreman of that department. On the date of the incident in question, plaintiff and three other employees were assigned at the beginning of the work day to transfer a certain chemical from a large container into smaller containers. When they arrived at their work station and noticed that the container was marked "hazardous-corrosive," they requested rubber gloves and goggles before starting their assigned task. A supervisor sent for the safety equipment. Shop rules required that employees busy themselves while waiting for equipment. One of the employees went to another area to do some work. Plaintiff started doing some clean-up or pick-up work around the area. The other two employees were apparently sitting around waiting for the equipment. Someone reported to McDermott that the group was idle, causing McDermott to become angry. He went to the work station and launched a profane tirade at the three workers present, including plaintiff, referring to them as "mother fuckers," accusing them of sitting on their "fucking asses," and threatening to "show them to the gate." The tirade lasted for about a minute, and then McDermott left the area.

Plaintiff was upset and began to experience pain in her chest, pounding in her head, and had difficulty breathing. She went to McDermott's office to discuss the incident. He said he apologized to her; she said he did not. She went to the company nurse, who suggested that plaintiff see a doctor. Plaintiff's family physician met her at the hospital, at which time plaintiff had chest pains, shortness of breath, and cold clammy hands. Fearing that she was having a heart attack, the doctor admitted her to the hospital. Plaintiff spent two days in the coronary care unit and another day in a regular room, during which time she had intravenous fluids, had blood drawn, and had an EKG and other tests done. A heart attack was ruled out and the doctor's diagnosis was acute anxiety reaction, a panic attack. Plaintiff was released from the hospital after three days without restriction, but with medication to take if she had further trouble.

Ms. White returned to work within a week. She was paid her regular pay while off from work, and her medical bills, totaling about $3,200, were paid by the company's medical benefits program. Plaintiff has continued to work at Monsanto, later transferring to McDermott's department at her own request. She occasionally becomes upset thinking about or dreaming about the incident, and has occasionally taken the prescribed medicine, but is not one to take medication.

II.

Ms. White sued Monsanto and McDermott, alleging that McDermott's conduct amounted to the intentional infliction of mental anguish and emotional distress upon plaintiff for which she was entitled to recover damages. After trial, the jury awarded her $60,000. Defendants appealed to the court of appeal, which affirmed, with one judge dissenting in part as to the amount of damages. White v. Monsanto Company, 570 So.2d 221 (La.App. 5th Cir.1990). Defendants' writ application was granted by this court. 575 So.2d 381 (La.1991).

III.

LSA-R.S. 23:1032 makes worker's compensation an employee's exclusive remedy for a work-related injury caused by a co-employee, except for a suit based on an intentional act. The words "intentional act" mean the same as "intentional tort." The legislative aim was to make use of the well-established division between intentional torts and negligence in common law. 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. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional. Bazley v. Tortorich, 397 So.2d 475 (La.1981).

The exclusive remedy rule is inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desires to bring about the physical results of his act, or believes they were substantially certain to follow from what he did. 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. Bazley, supra.

When an employee seeks to recover from his employer for an intentional tort, a court must apply the legal precepts of general tort law related to the particular intentional tort alleged in order to determine whether he has proved his cause of action and damages recoverable thereunder. Caudle v. Betts, 512 So.2d 389 (La.1987).

IV.

The particular intentional tort alleged in this case is the intentional infliction of emotional distress. Thus, the legal precepts of general tort law related to this tort must be applied to determine whether plaintiff has proved her cause of action and damages recoverable thereunder.

Most states now recognize intentional infliction of emotional distress as an independent tort, not "parasitic" to a physical injury or a traditional tort such as assault, battery, false imprisonment or the like. See Annotation, Modern Status of Intentional Infliction of Mental Distress As Independent Tort; "Outrage", 38 A.L.R. 4th 998 (1985), and cases cited therein. Discussed in the late 1930's by commentators ¹ who synthesized earlier cases, ² the tort was included in the 1948 supplement to the American Law Institute's Restatement (Second) of Torts Sec. 46. ³ The elements of the tort as described in the text and comments of the Restatement have been widely accepted and quoted.

Several Louisiana court of appeal decisions have recognized and defined the tort, generally in accordance with the Restatement. See Steadman v. South Cent. Bell Telephone Co., 362 So.2d 1144 (La.App 2d Cir.1978); Maggio v. St. Francis Medical Center, Inc., 391 So.2d 948 (La.App. 2d Cir.1980), writ denied 396 So.2d 1351 (La.1981); Ferlito v. Cecola, 419 So.2d 102 (La.App. 2d Cir.1982), writ denied 422 So.2d 157 (La.1982); Breaux v. South Louisiana Elec. Co-Op. Ass'n., 471 So.2d 967 (La.App. 1st Cir.1985); Smith v. Mahfouz, 489 So.2d 409 (La.App. 3d Cir.1986), writ denied 494 So.2d 1181 (La.1986); Muslow v. A.G. Edwards & Sons, Inc., 509 So.2d 1012 (La.App. 2d Cir.1987), writ denied 512 So.2d 1183 (1987); Engrum v. Boise Southern Co., 527 So.2d 362 (La.App. 3d Cir.1988); Boudoin v. Bradley, 549 So.2d 1265 (La.App. 3d Cir.1989). See also this court's decision in Moresi v. Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La.1990), which distinguished between the general rule of recovery for the intentional infliction of mental distress and the general rule of no recovery for emotional disturbance unaccompanied by physical injury, caused by mere negligence unless arising under special circumstances.

As noted in Steadman, supra, the Restatement is not binding on a Louisiana court, but it may be considered in determining whether liability exists under the fault-reparation principles of LSA-C.C. Art. 2315. Generally speaking, labels of specific torts and strictures attached thereto do not always coincide with Louisiana's broad and more flexible notion of fault under the Civil Code article. See Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984); Joyner v. Weaver, 337 So.2d 635 (La.App. 3d Cir.1976); Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App. 2d Cir.1974); Jones v. Simonson, 292 So.2d 251 (La.App. 4th Cir.1974). Nevertheless, restrictions and guidelines established for policy reasons can give practical guidance in deciding cases, particularly those involving relatively new and developing causes of action such as those for emotional distress injuries unaccompanied by physical injury. See Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 569 (La.1990). Compare Clomon v. Monroe City School Board, 572 So.2d 571, 574, 576 (La.1990).

Drawing on the background described, including consideration of Article 2315 and duty-risk principles, we affirm the viability in Louisiana of a cause of action for...