Mott v. River Parish Maintenance, Inc.

• Citation: 432 So.2d 827
• Decision Date: 23 May 1983
• Docket Number: No. 82-C-2347,82-C-2347
• Parties: Lawrence MOTT, Jr. v. RIVER PARISH MAINTENANCE, INC., et al.
• Court: Supreme Court of Louisiana

Page 827

432 So.2d 827

Lawrence MOTT, Jr. v. RIVER PARISH MAINTENANCE, INC., et al.

No. 82-C-2347.

Supreme Court of Louisiana.

May 23, 1983.

Abbott J. Reeves, Jr., Thomas L. Watson, New Orleans, for plaintiff-applicant.

Esmond Phelps, III, Dodge Hobson, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellant.

CALOGERO, Justice.

Plaintiff Lawrence Mott, Jr. is before us contesting a Court of Appeal, 417 So.2d 384 (La.App.1982) judgment which dismissed his tort suit against defendants David Krementz, River Parish Maintenance, Inc., and Avondale Shipyards, Inc. The Court of Appeal determined that plaintiff's exclusive remedy against these defendants was in worker's compensation, and accordingly held that his petition did not state a cause of action against them. For the following reasons, we affirm that judgment and remand the case to the district court for further proceedings.

It is well settled that in considering whether an exception of no cause of action should be sustained, the exception must be decided upon the face of plaintiff's petition alone, and all well-pleaded allegations of fact therein are to be considered as true. The facts as alleged in plaintiff's petition are essentially as follows. Sometime during the summer of 1979, plaintiff, a minor, was employed by River Parish Maintenance, Inc. (RPM). RPM was in turn engaged by Avondale Shipyards, Inc. (Avondale) to clear the levee of weeds in and around Avondale's plant. On August 2, 1979, while working for RPM at Avondale, plaintiff sustained certain personal injuries. Plaintiff was first injured while spraying herbicide along the levee when the hose carrying the liquid ruptured, spraying the herbicide on plaintiff's legs, chest, back, neck and hands. Plaintiff alleges he sustained additional injuries in attempting to drive a tractor back to the shop, upon order of his supervisor, while in considerable pain from being sprayed with the herbicide, when he swerved to miss a motorcycle rider and the tractor overturned.

Plaintiff originally filed suit against RPM, Avondale, Phillip Brothers Truck Service, Inc. (owner/lessor of the tractor), Travelers Insurance Co. (Avondale's insurer), ABC Manufacturing Co. (the manufacturer of the tractor), and XYZ Manufacturing Co. (the manufacturer of the hose). He later amended his petition to include as defendants David Krementz, an RPM employee who was supervising the work, and Camille J. Chauvin, an Avondale employee who was the overseer for the work being done by RPM.

Subsequently, defendant David Krementz filed a pleading entitled "Exception of No Right and/or Cause of Action." Defendants RPM and Avondale filed pleadings entitled "Exception of No Right of Action and/or Motion for Summary Judgment." These exceptions and motions were argued and submitted on December 22, 1980. On January 19, 1981, the trial court rendered a judgment ordering

"that all exceptions of no right of action be and they are hereby maintained, dismissing the above listed exceptors-defendants from this action, the Court being of the opinion that petitioner's exclusive remedy is in workmen's compensation."

On appeal by plaintiff, the Court of Appeal amended and affirmed the trial court judgment. The Court of Appeal held that the trial court had erred in maintaining the exception of no right of action, but further held that these defendants were nevertheless properly dismissed from plaintiff's tort suit because plaintiff's petition and amended petition did not state a cause of action against them. ¹

Plaintiff sought writs here, contending that the Court of Appeal erred in finding that plaintiff's petition did not state a cause of action against David Krementz, RPM and Avondale, and in dismissing those defendants from his tort suit. Plaintiff argues that the worker's compensation act (La.R.S. 23:1021 et seq.) does not apply where an employee is injured when caused or permitted to perform a task in contravention of a statute, as here where a minor was injured when caused or permitted to spray poisonous chemicals and to drive a motor vehicle used for commercial or industrial purposes, in violation of the Child Labor Laws, specifically La.R.S. 23:161. Accordingly, if the worker's compensation act is not applicable, plaintiff's petition in tort against RPM and Avondale states a cause of action. In the alternative, plaintiff argues that notwithstanding the general applicability of the worker's compensation act to him and his employment, his petition nonetheless states a cause of action in tort against RPM because his injuries resulted from an "intentional act" of Krementz's for which RPM is vicariously liable, and the act does not provide tort immunity. ²

In view of the procedural posture of the case, the only question presented for our consideration is whether the Court of Appeal erred in holding that, as to David Krementz, RPM and Avondale, plaintiff's petition and amended petition fail to state a cause of action against them. ³

As stated above, in considering whether an exception of no cause of action should be sustained, the reviewing court must determine, based upon the well-pleaded allegations of fact in the plaintiff's petition alone, whether a remedy is afforded anyone under the circumstances alleged, under any theory of the case.

Plaintiff's petition alleges, essentially, that RPM and Avondale are liable to him for his injuries because they were sustained while plaintiff was performing a task prohibited by the Child Labor Law and thus outside the coverage of the Worker's Compensation Act. Plaintiff's supplemental petition essentially alleges that RPM and David Krementz are liable for plaintiff's injuries because they were caused by an intentional act, that intentional act being Krementz's causing or permitting plaintiff to work in violation of the Child Labor Law.

We must determine whether, under these factual allegations and under any legal theory, plaintiff's petition and amended petition state a cause of action against Krementz, RPM and Avondale. Two questions are presented for our consideration: (1) whether a minor employee injured while performing, in the course and scope of his employment, a task which is prohibited by the Child Labor Law (La.R.S. 23:161), is covered by the worker's compensation act and thus denied any tort recovery from his employer or principal because of the exclusivity of worker's compensation; and (2) whether violation of the Child Labor Law in causing or permitting a minor employee to spray poisonous chemicals and/or drive a motor vehicle that is used for commercial or industrial purposes, constitutes an "intentional act" within the meaning of La.R.S. 23:1032 such that the minor employee can nonetheless maintain a tort action against his employer.

WORKER'S COMPENSATION COVERAGE

Both lower courts held that plaintiff's exclusive remedy is under the worker's compensation act. The Court of Appeal relied on the case of Messer v. Bagwell Coatings, Inc., 283 So.2d 279 (La.App. 1st Cir.1973) in support of its holding. In Messer, the court held that the Worker's Compensation Act provided the exclusive remedy for a minor against his employer where the minor was injured in the course and scope of his employment, notwithstanding that the employer had violated La.R.S. 23:161. For the reasons which follow, we hold that the lower courts were correct in this regard.

La.R.S. 23:1035 provides in pertinent part:

The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer's trade, business, or occupation .... (Emphasis provided.)

Despite the statutory reference to "every person," plaintiff nevertheless argues that it does not apply to minors who are performing tasks which are prohibited by the Child Labor Law. He argues that it only applies to services which are being performed legally. The statutory history of this provision makes it clear that plaintiff's position in this regard has no merit.

Prior to certain revisions of the Worker's Compensation Act in 1948, the section of the Act on coverage, although elective and applicable generally to minors, ⁴ expressly provided, "this act shall not apply to employees of less than the minimum age prescribed by law for the employment of minors in the trades, businesses or occupations specified" in the worker's compensation act. Thus, prior to the 1948 revisions of the act, it was expressly provided by the legislature that those minors who were employed illegally because below the minimum age required by law for them to perform certain jobs, were not covered by the Act.

In 1948, the provision on coverage was amended and the above language excluding from coverage minors employed in violation of law was deleted. Thus, even though the worker's compensation act remained elective at that time, minors who were below the minimum age prescribed by law for employment in certain trades were included within it under the 1948 amendment, with their right of election to be exercised by their parents or guardian. It is the deletion of the previous provision excluding minors from coverage which evidences the legislative intent to include minors, whether employed in violation of law because of their age or not, within the coverage of the worker's compensation act. Malone & Johnson, Louisiana Civil Law Treatise, Workers' Compensation, 53; Larson, Workmen's Compensation Law, § 47.52(a).

In 1975, major revisions were made to the compensation act to make it compulsory rather than elective, as it had been until then. As a part of these revisions, coverage as to private employees was, as it is now, provided in La.R.S. 23:1035. No change was made by these revisions with respect to which persons were covered by the act. To the contrary, the Legislature reaffirmed its intent to include all minors within the...