Holmes v. Pottharst

• Decision Date: 15 February 1990
• Docket Number: No. 89-CA-0920,89-CA-0920
• Parties: Mrs. Doris Jackson HOLMES, et al. v. J. POTTHARST, Jr., et al. 557 So.2d 1024
• Court: Court of Appeal of Louisiana — District of US

Page 1024

557 So.2d 1024

Mrs. Doris Jackson HOLMES, et al. v. J. POTTHARST, Jr., et al.

No. 89-CA-0920.

557 So.2d 1024

Court of Appeal of Louisiana Fourth Circuit.

Feb. 15, 1990.

Sidney L. Shushan, Barry E. Pike, Guste, Barnett & Shushan, New Orleans, for

plaintiffs-appellants Mrs. Doris Jackson Holmes, et al.

Lawrence J. Ernst, Charles M. Lanier, Jr., Christovich & Kearney, New Orleans, for defendants-appellees J. Pottharst, Jr., et al.

SCHOTT, C.J., and KLEES and ARMSTRONG, JJ.

KLEES, Judge.

Plaintiff Doris Jackson Holmes appeals the district court's dismissal of her suit on a motion for summary judgment. We reverse.

Plaintiff filed this action in 1981 against the Mechanical Equipment Company, Inc. [hereinafter "MECO"] and several of its officers and employees alleging that her husband, Lem Holmes, had died from silicosis he contracted on account of his work as a sandblaster for MECO. Because of the exclusivity provision of the worker's compensation statute, plaintiff's action against MECO can only succeed if she proves that her husband's silicosis was the result of an intentional act committed by officers or agents of MECO. L.S.A.-R.S. 23:1032; Fabre v. Kaiser Aluminum and Chemical Corp., 499 So.2d 1239, 1240 (La.App. 4th Cir.1986).

In Bazley v. Tortorich, 397 So.2d 475 (La.1981), the Supreme Court clearly set forth the standard for proving that an employer has acted intentionally in injuring an employee so as to overcome the exclusivity provision of the worker's compensation statute. The Court held:

The meaning of "intent" is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

Id. at 481.

Plaintiff does not argue that defendants consciously desired that her husband contract silicosis; rather, the issue is whether they knew that this result was "substantially certain" to follow from their conduct, as in the second part of the Bazley definition. In prior silicosis/asbestosis cases, we have held that to state a cause of action in intentional tort, it is sufficient if the plaintiff/employee alleges that his employer has knowingly failed to provide him with adequate or necessary protective equipment with which to perform his job. Goodman v. Dixie Machine Welding and Metal Works, Inc., 467 So.2d 61, 64 (La.App. 4th Cir.1985); Quick v. Murphy Oil Co., 446 So.2d 775 (La.App. 4th Cir.1982); writ denied, 447 So.2d 1074 (La.1984). In the instant case, the issue is whether MECO was aware that the protective clothing it provided to sandblaster Lem Holmes was inadequate. Plaintiff claims that summary judgment was improper because there exists a genuine issue of material fact as to MECO'S knowledge on this point.

Plaintiff relies heavily on Caudle v. Betts, 512 So.2d 389 (La.1987), in which the Supreme Court held that any "offensive contact" resulting from an act intended by the employer to cause the employee to suffer such contact, may constitute an intentional tort. Caudle involved an employee who was injured at an office party when one of his superiors gave him an electrical shock intended as a practical joke. The Supreme Court found that the act could be considered an intentional tort even though the employer did not intend the contact to be actually harmful, as long as he knew it would be offensive. Id. at 392.

Because of its peculiar facts, we do not believe that Caudle should be applied broadly to the whole range of silicosis/asbestosis cases, as plaintiff urges. One key distinction is that the employee in Caudle clearly did not consent to the contact, whereas Lem Holmes did consent to work as...