Brown v. Ebasco Services, Inc.
| Decision Date | 11 December 1984 |
| Docket Number | No. 84-CA-133,84-CA-133 |
| Parties | Darryl L. BROWN v. EBASCO SERVICES, INC., Tompkins-Beckwith, Inc., Louis Joseph, Hillary Jones, ABC Insurance Company, XYZ Insurance Company and Louisiana Power and Light Co. 461 So.2d 443 |
| Court | Court of Appeal of Louisiana — District of US |
Joseph W. Thomas and Ammon L. Miller, Jr., New Orleans, for plaintiff-appellant.
Esmond Phelps, II and John T. Costo, Phelps, Dunbar, Marks, Claverie & Sims, Paul B. Deal, Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Erilot, New Orleans, for defendants-appellees.
Before CHEHARDY, BOWES and CURRAULT, JJ.
Plaintiff Darryl L. Brown instituted the present lawsuit against EBASCO Services, Inc., Tompkins-Beckwith, Inc., Louisiana Power and Light Co., and their respective insurers, as well as against two individuals, Louis Joseph and Hillary Jones. Plaintiff attempted to set forth a cause of action against the defendants for damages resulting from an injury suffered by him during his employment as an apprentice welder on the construction of the nuclear power plant in Taft, Louisiana. Tompkins-Beckwith, plaintiff's immediate employer, filed an exception of no cause of action, alleging that plaintiff's sole cause of action is under workmen's compensation law. EBASCO and Louisiana Power and Light filed exceptions of no cause of action and prescription.
The trial judge set the exception filed by Tompkins-Beckwith for trial. There was evidently some confusion as to which exception was to be heard, inasmuch as the judgment of the trial court dated June 28, 1983 dismissed EBASCO'S exception, which had never been set for trial. Counsel for Tompkins-Beckwith moved the court to reconsider its judgment, and the matter was set to be re-heard. It appears from the final judgment, erroneously dated October 29, 1983, that the Tompkins-Beckwith exception was finally reconsidered on November 29, 1983. In the interim, EBASCO and Louisiana Power and Light filed a motion for summary judgment, also heard on November 29th. At these trials, the court maintained the Tompkins-Beckwith exception of no cause of action, giving plaintiff 30 days within which to amend his petition; and summary judgment was granted in favor of Louisiana Power and Light and EBASCO. (Those latter defendants apparently have abandoned their earlier exceptions since they were not heard nor set for hearing.) It is from these judgments dismissing plaintiff's suit that this appeal has been perfected.
Louisiana Power and Light contracted with EBASCO to design and construct the Waterford 3 power plant. EBASCO, the general contractor, contracted with Tompkins-Beckwith (Brown's immediate employer) to perform pipefitting and other work on the construction site. The accident occurred as plaintiff was using a grinder, when the grinding blade flew off and struck Brown in the face, causing injury to his face and eyes. In his petition, the plaintiff alleged in pertinent part:
4
The said grinding wheel flew off and/or disintegrated because of the negligence of defendants, Louis Joseph and Hillary Jones, in rigging the grinding machine with a blade which they knew was improper and otherwise not intended to be used with the grinding wheel.
5
The complained acts by defendants, Louis Joseph and Hillary Jones, were foreseeable and therefore was intended to cause harm and/or serious injury to plaintiff.
6
Petitioner's injuries resulted directly from the negligence of their employer, Tompkins-Beckwith, Inc., in failing to provide petitioner with a reasonably safe place to work and proper tools to work with, a non-delegable duty owed to petitioner by defendant, Tompkins-Beckwith.
7
Defendant, EBASCO Services, Inc., owed petitioner the non-delegable duty of providing and making certain that he was provided with a reasonably safe place to work and the proper tools to work with, and by failing to do so, they are liable to petitioner for the damages sued upon herein.
9
Louisiana Power and Light Company also owed the non-delegable duty of providing petitioner with and making certain that he was provided with a reasonably safe place to work and proper tools to work with; and in failing to do so they are liable to petitioner for the injuries sued upon herein.
10
As a result of the negligence of the herein named defendants, their agents and employees, and through no fault of petitioner's, petitioner suffered severe personal injury, mental pain and suffering and the loss of sight in his left eye.
Defendants argue that the petition alleges only negligence, not an intentional tort, and that they are therefore immune by reason of the compensation law, R.S. 23:1032. Plaintiff avers that paragraph 4 of his petition, quoted hereinabove, alleges intent sufficient to defeat an exception of no cause of action. We disagree with plaintiff.
The landmark case of Bazley v. Tortorich, 397 So.2d 475 (La.1981) interprets an intentional act under 23:1032 as follows:
The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.
Thus the exclusive remedy rule is inapplicable to intentional torts or offenses. Bazley, supra. There have been numerous attempts by district and appellate courts to apply Bazley. This court has recently held in the case of Mize v. Beker, 436 So.2d 1333 (La.App. 5th Cir.1983), writs denied 440 So.2d 761:
This much, however, seems certain: For an injured worker to pursue an R.S. 23:1032 tort claim, he must precisely allege acts or omissions that call for almost the same degree of proof as that required in a criminal proceeding. Otherwise, the petition language falls short, as it does in the instant case.
In affirming the district court which granted summary judgment in favor of the defendant employer, the court continued:
Should Mize prove all of his allegations, he would likely establish negligence but not that any defendant wanted appellant hurt or that any defendant knew that there was almost no chance of anything but an accident occurring.
Similarly, the Second Circuit in Reagan v. Olinkraft, Inc., 408 So.2d 937 (La.App. 2nd Cir.1981), on affirming a judgment sustaining an exception of no cause of action, stated:
Even if plaintiff proved all of the allegations of the petition, she would still be limited to workers' compensation benefits by R.S. 23:1032 since the allegations are insufficient to be an intentional tort even if proved. Thus, the exception of no cause of action was correctly maintained.
Plaintiff cites Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984), in which the Supreme Court found that an allegation by the plaintiff that the employer's officers knew to a substantial certainty that their acts in violation of safety regulations would cause an explosion which...
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