94-2675 La.App. 4 Cir. 10/12/95, Bridges v. Carl E. Woodward, Inc.

• Decision Date: 12 October 1995
• Citation: 663 So.2d 458
• Parties: 94-2675 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 458

663 So.2d 458

94-2675 La.App. 4 Cir. 10/12/95

In re Henry Earl BRIDGES v. CARL E. WOODWARD, INCORPORATED, DEF Insurance Company, XYZ Manufacturer, and XYZ Insurance Company.

No. 94-CA-2675.

Court of Appeal of Louisiana Fourth Circuit.

Oct. 12, 1995.

Writ Denied Jan. 26, 1996.

Pete Lewis, Michelle K. Buford, Lewis & Caplan, New Orleans, for Plaintiff/Appellant.

Joseph G. Gallagher, Jr., Hulse, Nelson & Wanek, New Orleans, for Defendant/Appellee.

Lance S. Ostendorf, Charles E. Sutton, Jr., Campbell, McCranie, Sistrunk, Anzelmo & Hardy, New Orleans, for Intervenor/Appellant.

Before BARRY, BYRNES, PLOTKIN, WALTZER and MURRAY, JJ.

[94-2675 La.App. 4 Cir. 1] PLOTKIN, Judge.

Once again, we are called upon to decide whether an employer's failure to install a safety warning device constitutes an intentional act entitling an injured employee to bring a tort action. If the employer's omission does not constitute an intentional tort, the employee's remedy is limited to worker's compensation and his tort action should be dismissed.

O.C. Peters, curator for employee Henry Earl Bridges (Bridges), brought this tort suit against Bridges' employer, Carl E. Woodward Inc. (Woodward), alleging that Woodward failed to procure and install and/or alternatively intentionally removed the warning system on a crane which injured Bridges, which constituted an intentional act. American Casualty Co. of Reading, Pennsylvania (American) intervened, seeking recovery of worker's compensation paid to Bridges. Woodward moved for a summary judgment, asserting the statutory employer immunity defense. The trial court granted summary judgment dismissing Bridges' claim and the claims of American. We affirm.

[94-2675 La.App. 4 Cir. 2] Facts

The following facts are undisputed by the parties. Woodward is a general construction contractor which has been in business in New Orleans for many years. In 1982, Woodward purchased a Grove model RT 522 crane from Wehring-Goss, a Grove distributor. The crane had a telescoping boom, and was rigged with one line for lifting a load. The crane was also equipped with the Kruger anti-two-block warning system.

"Two-blocking" is a phenomenon which occurs when the line is drawn up so the load pulls against the sheave at the end of the boom. Tension develops in the line, which can cause it to break. If the line breaks, the load will fall to the ground. An anti-two-block warning system, such as the Kruger device on this crane, warns the operator when the load nears the end of the boom. Specifically, a warning light flashes, and a horn sounds.

Charles Fuchs, the crane operator, testified that shortly after the crane was purchased, an auxiliary line was installed on the crane. An anti-two-block warning system was not installed on the auxiliary line. In 1985, the crane was being used on a construction site in Baton Rouge. During this job, the anti-two-block warning system on the main line was damaged. This system was not repaired before Bridges' accident. Therefore, at the time of the accident, an anti-two-block warning system was not functioning on either the main line (because it was broken) or the auxiliary line (because it had not been installed).

In 1989, Woodward had a contract with Alton Ochsner Medical Foundation to construct a new facility at its site in Jefferson Parish. The details of this agreement were set forth in the contract and specifications, which are part of the record. Bridges was employed by Woodward as a general laborer. He was working on the Ochsner project at the time of the accident.

[94-2675 La.App. 4 Cir. 3] Thomas Stengle, Bridges' foreman, and Robert Cummings, another Woodward laborer at the scene, testified by deposition that on December 4, 1989, Bridges was standing in an excavated pit, preparing to spread shells. The shells were being lowered into the pit by a crane operated by Fuchs, who was using a concrete buck attached to the main line to lower the shells. A "headache ball" was attached to the auxiliary, but it was not being used in this operation.

Moments before the accident, Fuchs began to extend, or telescope the boom of the crane. He then perceived the crane beginning to tilt, and he looked in the direction of his right out-rigger. Fuchs continued to extend the boom of the crane. This caused the slack in the auxiliary line to be drawn up so the headache ball attached to this line was pulled against the end of the boom. The auxiliary line broke, and the headache ball fell, striking Bridges on the head. The main line was not involved in the accident. It was the auxiliary line, which never had an anti-two-block warning system on it, which broke, allowing the headache ball to fall.

Fuchs testified that he was an experienced crane operator, having operated cranes since 1970, and had been employed as a crane operator for 19 years at the time of this accident. He had been licensed as a crane operator since 1987. He had operated numerous different cranes during his career. He had never operated a crane with a functioning anti-two-block warning system at any time prior to the accident. He testified by deposition that such warning systems were not common devices, and that he had never had a "two-blocking" accident before the one in this case.

Bridges provided the affidavit of Adm. Ben J. Lehman, USN (Ret.), a professional engineer and certified safety professional. Lehman studied the depositions of Fuchs, Cummings and Stengle, invoices and pamphlets concerning the Grove crane and Kruger anti-two-block device, and photographs of the block, [94-2675 La.App. 4 Cir. 4] control panel and warning signs. In addition to these documents, Mr. Lehman based his opinion on his education and experience as a professional engineer and certified safety professional. In his opinion, the anti-two-block device should have been mandatory, not optional. The lack of the device on the auxiliary hoist was an immediate cause of Bridges' injury. Lehman issued the following opinion:

It is my considered professional opinion ... [that] it is nearly inevitable that a two block situation will occur, having the potential of causing severe damage to the crane itself, to other property, and to persons working near it. Further, it is also my professional opinion that it was virtually certain that damage to the crane and to persons such as [Bridges] would be sustained if the Grove crane involved here were regularly operated without a properly installed, fully functioning and actively engaged anti-two-block device.

Standard for Summary Judgment

Plaintiff contends that summary judgment is not the appropriate procedural device for determining the question of intent.

As a general rule, appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183; Schroeder v. Board of Supervisors, 591 So.2d 342, 345 (La.1991). "A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law." La.C.C.P. art. 966(B).

A motion for summary judgment is not designed to be a substitute for a trial on the merits. Oller v. Sharp Electric, Inc., 451 So.2d 1235, 1237 (La.App. 4th Cir), writ denied, 457 So.2d 1194 (La.1984). Further, summary judgment may [94-2675 La.App. 4 Cir. 5] not be used to dispense with a case that is difficult to prove. Holmes v. Pottharst, 557 So.2d 1024, 1026 (La.App. 4th Cir.1990).

When a motion for summary judgment is made and supported with affidavits, depositions, and/or answer to interrogatories, the adverse party may not rest merely on the allegations or denials contained in the pleadings. Poydras Square Associates v. Suzette's Artique, Inc., 614 So.2d 131, 132 (La.App. 4th Cir.1993). Argument of counsel and briefs, no matter how artful, are not sufficient to raise a genuine issue of material fact. Allegations without substance will not support a summary judgment. Despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 27 (La.App. 4th Cir.1990), writ denied, 572 So.2d 68 (La.1991).

In determining whether the party moving for summary judgment has satisfied his burden, the papers supporting his position must be closely scrutinized, while the opposing papers are to be indulgently treated. Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4th Cir.1993). All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion. Carr v. City of New Orleans, 622 So.2d 819, 822 (La.App. 4th Cir.), writ denied, 629 So.2d 404 (La.1993).

Summary judgment is the appropriate procedural device when the issue of intent is raised. In Mayer v. Valentine Sugars, 444 So.2d 618 (La.1984), the Louisiana Supreme Court held that the exception of no cause of action is not the appropriate procedural device to dispose of a LSA-R.S. 23:1032(B) case when the lack of intent is raised, stating as follows:

Defendant argues that it should be permitted by the exception of no cause of action to penetrate the plaintiff's general allegation of intent to demonstrate that plaintiff's [94-2675 La.App. 4 Cir. 6] injuries did not in fact result from an intentional act. This is the function of a motion for summary judgment however, and not that of an exception of no cause of action.

444 So.2d at 620 (emphasis added).

The Louisiana Supreme Court reaffirmed this position in Carey v. UMC, 553 So.2d 472 (La.1989). In that case, the court reversed a dismissal of a LSA-R.S. 23:1032(B) case on an exception of no cause of action, stating that "[t]he merit of plaintiff's...