Bennight v. Western Auto Supply Co., 13838
| Citation | 670 S.W.2d 373 |
| Decision Date | 04 April 1984 |
| Docket Number | No. 13838,13838 |
| Parties | Joe BENNIGHT, et ux, et al., Appellants, v. WESTERN AUTO SUPPLY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Jack W. London, Law Offices of Jack W. London & Associates, P.C., Austin, for appellants.
Michael S. Hull, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
Before SHANNON, POWERS and BRADY, JJ.
Joe Bennight and his minor daughter, Jennifer Bennight, appeal from a judgment of the trial court that denies them recovery in their suit against Western Auto Supply Company. Their claims arose from personal injuries sustained by Cathy Bennight, their wife and mother respectively, in the course of her employment with the company. We will reverse the judgment of the trial court that Joe Bennight take nothing, rendering judgment that he recover against Western Auto in the amount found by the jury as his damages. We will affirm the judgment of the trial court that Jennifer Bennight take nothing by her suit.
The rear, or warehouse area, of the Western Auto retail store where Cathy Bennight worked was shown to be infested with bats, a fact known to the manager of the store who refused to have them removed after being requested several times by employees to do so. The manager knew the bats posed a serious risk of rabies should one bite an employee, a fact pointed out to him by employees and a local health official whom employees called to the store shortly before the incident giving rise to the present suit.
Cathy Bennight was fearful of the bats, a fact communicated repeatedly to the manager. On several occasions, he nevertheless required her, over her protests, to enter the bat-infested area in the course of her work. On one particular day, she was "attacked" by bats three times while in the rear of the store. She was not bitten although one became briefly entangled in her hair. The next working day, she was bitten by a bat when the manager required that she go again to the rear of the store on a business errand. The bite necessitated anti-rabies treatment.
In the course of treatment, Cathy reacted adversely to a prescribed vaccine, becoming permanently blind and emotionally disturbed. She asserted against Western Auto a worker's compensation claim that was ultimately settled and compromised pursuant to the Workers' Compensation Act, Tex.Rev.Civ.Stat.Ann. arts. 8306-8309f (1967 & Supp.1982).
Alleging that the manager had committed an intentional tort, Joe Bennight sued Western Auto for loss of consortium. Under similar allegations, Jennifer sued for harms allegedly sustained by her as a result of her mother's injuries. These harms are discussed in more detail below.
Before trial, the district court rendered summary judgment that Jennifer take nothing by her suit. The judgment rests, in this respect, upon the ground that Jennifer possessed no cause of action of the kind alleged by her. The parties proceeded to trial on Joe Bennight's claim for loss of consortium. At the conclusion of the trial, the jury returned the following verdict in answer to special issues submitted to them:
1. Do you find from a preponderance of the evidence that on the occasion in question [the manager] required Cathy Bennight to work in the warehouse area against her will with the intention of causing her to be bitten by a bat or to be otherwise exposed to rabies?
Answer: We do not.
* * *
* * *
3. Do you find from a preponderance of the evidence that [Western Auto], through its manager, intentionally maintained an unsafe place to work?
Answer: We do.
4. Do you find from a preponderance of the evidence that on the occasion in question [the manager] required Cathy Bennight to work in the loft against her will when he knew that such place was an unsafe place to work?
Answer: We do.
5. Do you find from a preponderance of the evidence that the action described in Special Issue No. 4 was a proximate cause of physical or emotional harm to Cathy Bennight?
Answer: We do.
6. What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Joe Bennight for loss of consortium, if any, suffered by him in the past and which, in reasonable probability, will be suffered by him in the future, resulting from physical and emotional harm sustained by Cathy Bennight, if any. By "loss of consortium" is meant the mutual right of a husband and wife to that affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.
Answer: $87,500.00.
The trial court rendered judgment on the verdict that Joe Bennight take nothing. This appeal ensued.
If the injury sustained by Cathy Bennight in her employment was an "accidental injury," Joe Bennight's loss of consortium is not compensable because his claim, being derivative of his wife's claim, is barred by the exclusive-remedy provision contained in the Workers' Compensation Act. If, on the other hand, Cathy's injury was the result of an intentional tort by the manager, her husband's claim for loss of consortium is not barred by the Act, for the bar extends only to "accidental injuries." By Cathy's settlement and compromise under the act, she is estopped from further recovery against Western Auto. Massey v. Armco Steel Company, 652 S.W.2d 932 (Tex.1983); Castleberry v. Goolsby Building Corporation, 617 S.W.2d 665 (Tex.1981); Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex.1980); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916). The parties concede the foregoing rules. Their dispute is whether the jury's verdict establishes that Cathy's injury was accidental or intentional.
The parties' respective contentions center upon the nature of the intent required in order that a tort might be classified as "intentional." Joe Bennight argues that the requisite intent refers to an intentional breach of a duty owed by an employer to his employee, here the duty of furnishing a safe place to work, so that an "intentional tort" results when such a breach of duty is the proximate cause of harm to some legally protected interest of the employee. Western Auto argues, on the other hand, that the intent required for an "intentional tort" is more circumscribed--that nothing short of an actual intent by the employer to injure the employee will suffice; and, moreover, the employer must intend to injure the employee: (1) in the precise way in which he was in fact injured and (2) in the specific legally protected interest in which he was in fact injured. Given their respective positions in argument, the parties are able to assign opposite meaning and effect to the jury's verdict in the present case. 1 Joe Bennight contends that Western Auto was under a duty to furnish his wife a safe place to work. Tex.Rev.Civ.Stat.Ann. art. 5182a, § 3(a) (1971). He argues that the verdict establishes a breach of that duty by the manager when he intentionally maintained the workplace in an unsafe condition and required Cathy to work there, as the jury found in answer to special issues 3 and 4. Therefore, when the jury's answers as to proximate cause and damages are coupled with those in response to special issues 3 and 4, Joe Bennight contends that the verdict establishes an intentional tort for which he was entitled to judgment on the verdict, notwithstanding the jury's answer to special issue 1.
Western Auto urges the terms of section 8A, Restatement (Second) of Torts (1965). That section provides:
The word "intent" is used throughout the Restatement of this Subject to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.
The comments under the section give further meaning to the foregoing black-letter statement. The word "intent" refers "to the consequences of an act rather than the act itself" and "is limited, wherever it is used, to the consequences of the act." However, "intent" to cause particular consequences is not limited to those consequences which the actor "desires," but includes those which he knows are certain, or substantially certain, to result from his act. The charge to the jury defined "intent" substantially in the sense supplied by section 8A and the comments thereunder.
Based upon the foregoing definition of "intent," Western Auto points to the jury's answer to special issue 1 and argues that it confirms that the manager did not commit an intentional tort because the jury's answer establishes that: (1) the manager did not intend the particular consequences (that is, being bitten by a bat and exposed to rabies) which followed from his requiring Cathy Bennight to work in the warehouse; and (2) those consequences were not certain or substantially certain to result from the manager's act.
We believe Western Auto's position to be unsound because it leaves no room for a legal principle well-established both in the Restatement itself and in several Texas decisions. The principle is this: the unlawful and intentional invasion of one legally protected interest of another will supply the intent necessary to hold the actor liable for the unintended consequences of his act when some other legally protected interest of the victim is harmed in consequence of the act. The jury's answer to special issue 1 establishes only that the manager did not intend that Cathy be bitten by a bat and exposed to rabies; it does not establish, as a matter of law, that he committed no intentional tort against Cathy, for as we will discuss below, the jury's answer to the remaining special issues established that he intentionally committed an assault against her and his intent in that regard is imputed by operation of law to the actual harm which did occur with catastrophic results.
Section 8A of the Restatement must, of course, be interpreted in...
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