Domingue ex rel. Domingue v. Allied

• Decision Date: 09 May 2003
• Docket Number: No. 2002 CA 1338.,2002 CA 1338.
• Citation: 849 So.2d 690
• Parties: Tommy and Kimberly DOMINGUE and on Behalf of Their Minor Children Jordan and Jake DOMINGUE v. ALLIED DISCOUNT TIRE AND BRAKE, INC. and Dan Jones.
• Court: Court of Appeal of Louisiana — District of US

849 So.2d 690

Tommy and Kimberly DOMINGUE and on Behalf of Their Minor Children Jordan and Jake DOMINGUE v. ALLIED DISCOUNT TIRE AND BRAKE, INC. and Dan Jones.

No. .

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.

S. Alfred Adams, Baton Rouge, Counsel for Plaintiffs/Appellees Tommy and Kimberly Domingue and on behalf of their minor children Jordan and Jake Domingue.

Dan E. West, Baton Rouge, Margaret Diamond, New Orleans, Counsel for Defendants/Appellants Allied Discount Tire and Brake, Inc. and Dan Jones.

Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.

FITZSIMMONS, J.

Allied Discount Tire and Brake, Inc. (Allied) and Dan Jones (Jones), an employee of Allied, appeal a judgment finding Dan Jones at fault for an intentional tort committed against Tommy Domingue (Domingue), another employee at Allied. Following a review of the facts and pertinent law, this court affirms the judgment of the trial court.

BACKGROUND

On February 8, 1996, Dan Jones (Jones), the district manager of Allied, was on the premises of one of Allied's stores to investigate a complaint. Domingue was employed as the service manager at the store. The initial purpose of Jones's visit to the Airline Highway Allied store is disputed.¹ It is, however, uncontested that as a result of Jones's review of complaints of payroll deficiencies by employees at the Airline Highway store, Domingue tendered his resignation, and the two men engaged in a physical fight.

The trial court adjudged Jones, and thereby Allied as his employer, one hundred percent liable in solido. General damages in the sum of $100,000.00 were awarded to Domingue. Domingue was also granted $82,034.20 in lost wages, $11,446.63 in past medical expenses, and $5,671.40 in future medical expenses.

Allied and Jones allege as error: the court's finding of an intentional tort; the allocation of one hundred percent fault to Jones; causation of plaintiff's back pains, headaches, and temporomandibular joint dysfunction by the physical altercation; and the amount of general and special damages. Domingue answered the appeal, seeking an increase in the sum awarded for loss of wages.

LAW

Intentional Tort

Jones contends on appeal that the evidence does not demonstrate that he had any intent to harm Domingue. An intentional tort of battery is a harmful or offensive contact with a person, resulting from an act intended to bring about a result which will involve the interests of another in a way that the law forbids. See Caudle v. Betts, 512 So.2d 389, 391 (La. 1987)

. When there occurs an intentional tort of battery by one employee against another employee, the exclusivity provisions of the Louisiana Workers' Compensation Act do not preclude the plaintiff's coextensive right to pursue a tort suit against the employer. See La. R.S. 23:1032 B; Quebedeaux v. Dow Chemical Company, 2001-2297, p. 4 (La.6/21/02), 820 So.2d 542, 545. In order to attribute the element of "intent," within the context of La. R.S. 23:1032 B, the employer or other person identified in the act must either (1) consciously desire the physical result of his act, whatever the likelihood of the result happening from his conduct, or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.²

Reeves v. Structural Preservation Systems, 98-1795, p. 6 (La.3/12/99), 731 So.2d 208, 211. Gauging which party was the aggressor or whether excessive force was used in repelling an attack is a question of fact dependent on the particular facts and circumstances of each case. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563, 564-565 (1969).

Domingue testified that Jones slung a coffee cup at him and then struck him in the eye; whereupon, Domingue went back up against a desk. This version of events was corroborated by Donald R. Dunbar, Jr., a witness, who was a tire technician at Allied at the same time that Domingue worked there. Contrarily, Jones stated that Domingue tried to hit him with the phone receiver, that Jones "threw [his] hands up to block the receiver[,]" and that he only hit Domingue in self-defense. In oral reasons for judgment, the trial court judge made the credibility determination that "Mr. Jones was the initial aggressor and his action was clearly intentional." Moreover, the judge found that "Mr. Domingue did not provoke or initiate the punch which was thrown by Mr. Jones."

When reviewing credibility determinations of fact, this court's role is limited to ascertaining whether the fact finder's conclusion was a reasonable one, not whether the trier of fact was right or wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). We do not ascribe to the record any evidence that Domingue's story was so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). In the absence of such a situation in the instant case, the trial court's determination that an intentional tort was committed by Jones is not manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 845.

Percentage of Fault

Implicit in the trial court's pronouncement that Jones intentionally initiated the fight and Allied should be cast one hundred percent liable for the acts of its employee, was the court's exoneration of Domingue from fault. Prior to the trial of this matter, the court granted an "exception of res judicata on the issue of aggression as to defendant Allied ... but not as to defendant, Dan Jones individually." The trial court's finding was premised on a prior workers' compensation judge's determination that Domingue was not the initial aggressor.

The principles of res judicata are established in La. R.S. 13:4231. That statute states, in relevant part, that a final judgment is conclusive between the same parties when various conditions are met. Patin v. Patin, XXXX-XXXX, p. 4 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676. The record in the case at hand contains an excerpt from the workers' compensation hearing involving Domingue. Therein, the workers' compensation judge factually found that Domingue was not the initial aggressor. A factual conclusion issued from the bench falls short of a judgment of the court within the parameters of the application of the res judicata doctrine pursuant to La. R.S. 13:4231. Moreover, the procedural requisites and burdens of proof associated with a workers' compensation claim are divergent from the requisites of a tort case; therefore, a factual determination in one forum does not readily substitute for the evidentiary requirements of the other. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party's substantive rights have actually been previously addressed and finally resolved. Patin, XXXX-XXXX, p. 5, 808 So.2d at 676.

The trial court erred in applying the doctrine of res judicata to the instant case. The court, however, properly excluded Jones from its res judicata decision; therefore, any error in its application to Allied becomes substantively inconsequential on appeal due to the trial court's full review of the issue of aggression vis a vis Jones. It is important to note that following said consideration, the court reached a completely independent determination that Jones was the initial aggressor. Our review of the record does not disclose any manifest error in the trial court's determination that Jones was the aggressor.

When a person responds to an attack by using more force than is necessary to repel the aggression or apparent aggression, he is liable for injuries caused by the unnecessary force. Stewart v. Vidrine, 408 So.2d 413, 416 (La.App. 1st Cir. 1981). Factors considered by the courts in a calibration of the reasonableness of action by the party being attacked include: the character and reputation of the attacker, the belligerence of the aggressor, a large difference in size and strength between the parties, an overt act by the attacker, threats of serious bodily harm, and the impossibility of a peaceful retreat. Slayton v. McDonald, 29,257, p. 6 (La.App. 2 Cir. 2/26/97), 690 So.2d 914, 918; Levesque v. Saba, 402 So.2d 266, 270 (La.App. 4th Cir.1981). Domingue stated in court that he "came back swinging" in response to Jones's provocative attack. It is not disputed that Jones was substantially larger than Domingue, and there was no evidence that Domingue's attempts inflicted injury on Jones. Thus, the trial court's implied conclusion that Domingue's actions were reasonable under the circumstances and its allocation of one hundred percent fault to Allied is not manifestly erroneous. See Rosell, 549 So.2d at 844

.

Causation and Damages

Allied and Jones challenge the award of damages for Domingue's back pain, persistent headaches, temporomandibular joint syndrome (TMJ), and the extraction of all of Domingue's teeth as part of the associated treatment.

Dr. Timothy R. Raborn, a general dentist, first treated Domingue for TMJ on February 16, 1996. He testified that, due to the bad condition of Domingue's teeth, he was unable to initiate splint therapy without first extracting all of Domingue's teeth. Domingue was not financially able to undergo the extraction until February 23, 1999; therefore, Dr. Raborn placed him on prescriptions of Motrin, Lorcet, and valium for pain throughout the three intervening years. Following the extraction of his teeth and splint therapy in 1999, Domingue was, thereafter, referred by Dr. Raborn to Dr. Neil Smith, a neurologist. Dr. Smith successfully treated him for his persistent post-traumatic migraine symptoms, thereby ultimately alleviating the chronic headaches.

Given the failure of Dr. Raborn's treatment to fully alleviate Domingue's symptoms and Dr. Smith's subsequent success with Domingue's headaches, Allied contests Dr. Raborn's diagnosis and remedial treatment of TMJ following the...