Armstead v. Schwegmann Giant Super Markets, Inc.

• Decision Date: 28 April 1993
• Docket Number: No. 92-CA-0594,92-CA-0594
• Citation: Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140 (La. App. 1993)
• Parties: Calvin ARMSTEAD v. SCHWEGMANN GIANT SUPER MARKETS, INC.
• Court: Court of Appeal of Louisiana

Page 1140

618 So.2d 1140

Calvin ARMSTEAD v. SCHWEGMANN GIANT SUPER MARKETS, INC.

No. 92-CA-0594.

Court of Appeal of Louisiana Fourth Circuit.

April 28, 1993.

Rehearing Denied June 23, 1993.

Dean A. Sutherland, Susanne Cambre, Sutherland, Juge, Horack & Dwyer and Charles E. McHale, Jr., New Orleans, for appellant.

Bruce A. Cranner, Blue, Williams & Buckley, Metairie, for appellee.

Before WARD, JONES and LANDRIEU, JJ.

LANDRIEU, Judge.

Plaintiff, Calvin Armstead, appeals the dismissal of his suit by the trial court on a motion for summary judgment rendered in favor of the defendant, Schwegmann Giant Supermarkets, Inc. (hereinafter "Schwegmann"). We affirm.

FACTS

On July 14, 1990, while in the course and scope of employment as a meat grinder with Schwegmann's, plaintiff was injured. As he was loading meat into the hopper of the meat grinder, the machine accidently "kicked on" and grabbed the right sleeve of plaintiff's coat. Numerous attempts, by other employees, to shut the machine off were unsuccessful. In order to stop the meat grinder, power to the entire meat department had to be pulled. By the time the power was disconnected, plaintiff's arm was tangled in the blades of the meat grinder.

On November 9, 1990, alleging his injuries were caused by the intentional acts of Schwegmann, plaintiff filed a petition for damages against his employer. In its answer to the petition, Schwegmann denied plaintiff's assertions and pled negligence on the part of Armstead. Schwegmann further pled that the Louisiana Worker's Compensation Act was plaintiff's sole remedy against his employer.

Asserting the "intentional act" exception to the Louisiana Worker's Compensation Act was inapplicable to the present case, Schwegmann filed a Motion for Summary Judgment. The trial court granted Schwegmann's motion for summary judgment and dismissed plaintiff's claim with prejudice.

DISCUSSION

ASSIGNMENT OF ERROR NO. 1

Plaintiff contends the trial court committed reversible error when it granted Schwegmann's motion for summary judgment. Specifically, he argues there exist genuine issues of material fact with regard to whether Schwegmann knew Armstead's accident was substantially certain to occur.

In order to avoid the general rule that an employee's exclusive remedy for a work-related injury is worker's compensation, plaintiff must establish that his injury was the result of an "intentional act". La.Rev.Stat.Ann. Sec. 23:1032 (West Supp.1992). ¹ "Intent" within the context of Section 23:1032 means that the defendant either consciously desired to bring about the physical result of his act or believed it was substantially certain to follow from his conduct. Bazley v. Tortorich, 397 So.2d 475 (La.1981). "Substantially certain to follow" requires more than a reasonable probability that an injury will occur; "certain" has been defined to mean "inevitable" or "incapable of failing". Kent v. Jomac Products, Inc., 542 So.2d 99 (La.App. 1st Cir.1989). The mere knowledge of an employer that a machine is dangerous and that its use, therefore, creates a high probability that someone will eventually be injured is not sufficient to meet the "substantial certainty" requirement. King v. Schuykill Metals Corp., 581 So.2d 300 (La.App. 1st Cir.1991), writ denied 584 So.2d 1163 (La.1991). Furthermore, even where a defendant's conduct is grossly negligent, this fact alone will not allow the imputation of intent. Id.

La.Code Civ.Proc.Ann. art. 966 (West 1984) provides that summary judgment shall be rendered

... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

Once a motion for summary judgment has been made and supported, the opposing party must affirmatively show that there remains a genuine issue for trial. La.Code Civ.Proc.Ann. art. 967 (West 1984); Osborne v. Vulcan Foundry, Inc., 577 So.2d 318 (La.App. 4th Cir.1991).

In support of its motion for summary judgment, Schwegmann attached the affidavit of Andre Roques, its claims manager, and excerpts from plaintiff's deposition. Andre Roques stated in his affidavit that plaintiff was employed by Schwegmann as a meat department worker when he was injured. He further noted that, since the accident, Armstead had been receiving worker's compensation payments and all his medical expenses were compensable pursuant to the Louisiana Worker's Compensation Act. In his deposition, Armstead stated that he had never experienced any problems with the grinder before the accident, and that he believed no one from Schwegmann intentionally tried to injure him.

In opposition to Schwegmann's motion for summary judgment, plaintiff attached his own affidavit, the affidavit of G. Fred Liebkemann, a mechanical engineer who personally inspected the meat grinder, and Schwegmann's meat department safety checksheets from January 2, 1990 through July 6, 1990. Armstead stated in his affidavit that he was never given any training or instructions on how to operate the meat grinder. Since he was never instructed to use the meat grinder with the steel lid closed, plaintiff claimed he routinely and regularly operated the grinder with the steel lid open. Armstead asserted that although problems with the meat grinder were reported to supervisors by himself and other co-workers in the past, he was instructed to continue using the machine. Safety checksheets indicated the meat grinder needed repairs to the safety switch, which were not performed during the relevant period.

Liebkemann's affidavit indicated that he inspected the meat grinder as well as the only currently available drawings of its parts and mechanisms. He noted that the meat grinder was originally designed with a hinged steel lid which fit over the hopper and with a switch set to preclude operation if that steel lid was open. Liebkemann further stated that this safety mechanism must have been broken if Armstead's arm was in the hopper while the meat grinder was operating.

Although plaintiff's evidence in opposition to the motion for summary judgment might support a claim of negligence or, arguably, even gross negligence, there is no issue of material fact regarding whether Armstead's injury resulted from an intentional act within the meaning of Section 23:1032. Accordingly, the trial court did not err when it granted summary judgment in favor of Schwegmann.

ASSIGNMENT OF ERROR NO. 2

Plaintiff also contends the trial court committed reversible error by granting Schwegmann's motion for summary judgment prior to the completion of discovery.

In his opposition to summary judgment, plaintiff claimed he needed further discovery to learn the extent of Schwegmann's knowledge, policies, and repair efforts. Plaintiff additionally desired information on other accidents, if any, regarding the grinder, and drawings of the grinder from its manufacturer.

Although the plaintiff should have a fair opportunity to present his claim, there is no absolute right to delay action on a motion for summary judgment until discovery is completed. To delay suit when it appears there is no genuine issue of fact, the party opposing the summary judgment must show a probable injustice. La.Code Civ.Proc.Ann. art. 967 (West 1984); Simoneaux v. E.I. Dupont De Nemours and Company, Inc., 483 So.2d 908, 912-13 (La.1986); Borne v. Miller, 505 So.2d 160 (La.App. 4th Cir.1987).

Schwegmann complied with the plaintiff's discovery requests. Interrogatories and request for production were answered. Considering plaintiff filed his petition on November 9, 1990 and Schwegmann's Motion for Summary Judgment was not heard until November 15, 1991, plaintiff had ample time in which to present his claim and to conduct discovery. Accordingly, this assignment of error is without merit.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellant.

AFFIRMED.

JONES, J., dissents with reasons.

JONES, Judge, dissenting, with reasons.

On November 9, 1990 the plaintiff filed a petition for damages against the defendant. Plaintiff alleged that he sustained permanent and painful crippling injuries to his right hand and arm, while employed as a clerk in the meat department of defendant's supermarket. More specifically he alleged that on July 14, 1990 he was putting raw meat into a meat grinder when it suddenly kicked on without any forewarning, catching the right front sleeve of his uniform and pulling his right arm more than halfway into the machine. As a result of the accident, plaintiff's right arm was butchered from the hand to halfway between his elbow and armpit.

After some limited discovery had been conducted, the defendant filed a motion for summary judgment claiming that no genuine issues of material facts existed in the case and that defendant was entitled to judgment dismissing the plaintiff's action. In support of the motion for summary judgment the defendant submitted a memorandum of law and the following:

1. A statement of undisputed material facts admitting that plaintiff was injured within the course and scope of his employment with the defendant, Schwegmann; that plaintiff was receiving worker's compensation payments from the defendant; that plaintiff's medical treatment was covered by the provisions of the Worker's Compensation Act; and that plaintiff knew of no co-worker who deliberately or intentionally injured him or desired to see him injured.

2. Excerpts from plaintiff's deposition of April 9, 1991 wherein he answered "no" to a question posed by defendant's attorney as to whether he believed anybody deliberately or intentionally wanted to injure him or see him become injured.

3. An affidavit from Andre Roques, the claims manager for Schwegmann, attesting to the fact that plaintiff was employed by Schwegmann as a meat department worker at...