Mott v. River Parish Maintenance, Inc.

• Decision Date: 11 May 1982
• Docket Number: No. 5-8,5-8
• Citation: 417 So.2d 384
• Parties: Lawrence MOTT, Jr. v. RIVER PARISH MAINTENANCE, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 384

417 So.2d 384

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

No. 5-8.

Court of Appeal of Louisiana Fourth Circuit.

May 11, 1982.

Rehearing Denied Aug. 17, 1982.

Abbott J. Reeves, Gretna, and Thomas L. Watson, New Orleans, for Lawrence Mott, Jr., plaintiff-appellant.

Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, Dodge Hobson, New Orleans, for Avondale Shipyards, Inc., and River Parish Maintenance, Inc., defendants-appellees.

Before BOUTALL, CHEHARDY and KLIEBERT, JJ.

CHEHARDY, Judge.

Plaintiff Lawrence Mott, Jr., appeals a district court judgment in favor of defendants David Krementz, Avondale Shipyards, Inc. (Avondale), and River Parish Maintenance, Inc. (R.P.M.), and against the plaintiff, maintaining their exceptions of no right of action and dismissing those defendants from the plaintiff's suit in tort. The court stated it was of the opinion the plaintiff's exclusive remedy was in workmen's compensation.

Plaintiff filed suit against the above named and other defendants alleging damages due to personal injuries he sustained on August 2, 1979 while working for R.P.M. and as he was operating a tractor on the premises of Avondale. The plaintiff also alleged Avondale had engaged R.P.M. to clear the levee of weeds in and around the plant and that plaintiff had been engaged in spraying a herbicide along the levee when the hose carrying liquid ruptured, spraying the toxic substance on plaintiff's legs, chest, back, neck and hands, causing severe chemical burns thereto.

After that incident, the petition further states plaintiff's supervisor told him to drive the tractor to the shop and while proceeding there he swerved the vehicle to avoid a speeding motorcycle, causing the tractor to overturn with injuries resulting to plaintiff.

Plaintiff's original petition in Paragraph VIII avers:

"Said accident occurred through the negligence of defendant R P M, whose negligence is imputed to the defendant, Avondale. Such negligence consisted of but was not limited to the following:

A. Permitting and/or suffering the plaintiff, a minor, to operate a motor vehicle used for commercial or industrial purposes in violation of La.R.S. 23:161(10);

B. Permitting or suffering plaintiff, a minor to work in an operation involving exposure to dangerous or poisonous chemicals, in violation of La.R.S. 23:161(12);

C. Allowing plaintiff to operate substandard and defective equipment;

D. Ordering plaintiff, who was obviously injured to drive a damaged vehicle to the shop for repair."

David Krementz was subsequently joined as a defendant by amended petition, plaintiff alleging that Krementz was plaintiff's immediate supervisor at R.P.M., and alleging further in Article 4 of said amended petition:

"The original petition is hereby amended to add the two following paragraphs:

'XVI

Said accident occurred through the negligent and intentional acts of David Krementz, plaintiff's immediate supervisor at RPM, the liability for which acts is also imputed unto defendant, RPM, under the theory of respondeat superior. Said negligent and intentional acts consisted of but were not limited to:

A. Knowingly permitting and/or suffering plaintiff, then a minor child, to operate a motor vehicle used for commercial or industrial purposes in violation of La.R.S. 23:161(10);

B. Knowingly permitting and/or suffering plaintiff, then a minor child, to work in an occupation involving exposure to dangerous and poisonous chemicals, in violation of La.R.S. 23:161(12);

C. Allowing plaintiff to operate substandard defective equipment;

D. Ordering plaintiff who was obviously injured to drive a damaged vehicle to the shop for repair.

XVII

Said accident occurred through the negligent and intentional acts of Camille J. Chauvin, plaintiff's supervisor at Avondale, the liability for which acts is also imputed unto defendant Avondale under the theory of respondeat superior. Said negligent and intentional acts consisted of but were not limited to the following:

A. Knowingly permitting and/or suffering plaintiff, then a minor child, to operate a motor vehicle used for commercial or industrial purposes, in violation of La.R.S. 23:161(10);

B. Knowingly permitting and/or suffering plaintiff, then a minor child, to work in an occupation involving exposure to dangerous and poisonous chemicals, in violation of La.R.S. 23:161(12);

C. Allowing plaintiff to operate substandard and defective equipment;

D. Willfully failing to investigate the first accident in which plaintiff sustained chemical burns, which investigation could have prevented the later and more serious accident.' "

In a second amended petition, plaintiff further alleges that:

"Plaintiff wishes to amend his original petition to add the following paragraph:

'VIII(a)

Said accident occurred through the negligence of defendant, Avondale, in the following particulars:

A. Failing to erect stop and/or yield signs at the intersection of the road on its property where the accident occurred or otherwise to supervise traffic on the said road in such a manner as to render it safe and passable.

B. Failing to properly supervise its employee, whose reckless and excessive speed in the operation of the trail bike owned by Avondale was a proximate cause of the accident herein.' "

The judgment of January 19, 1981 from which plaintiff appeals states in part:

"Before the Court are:

(1) Exceptions of no right or cause of action filed by defendant David Krementz;

(2) An exception of no right of action and/or motion for summary judgment filed by defendant Avondale Shipyards, Inc.; and

(3) An exception of no right of action and/or motion for summary judgment filed by defendant River Parish Maintenance, Inc.

"After considering the pleadings, arguments of counsel and the statutes and jurisprudence of this State,

IT IS ORDERED 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."

The peremptory exception of no right of action raises questions of whether a remedy afforded by law can be invoked by a particular plaintiff, whereas the peremptory exception of no cause of action questions whether the law affords any remedy to plaintiffs under allegations of their petitions. Concerned Citizens of Rapides Parish v. Hardy, 397 So.2d 1063 (La.App. 3d Cir. 1981)

"The peremptory exception of no cause of action tests the sufficiency in law of plaintiff's petition to allow recovery by anyone against the defendants. The exception is triable solely on the face of the petition and any annexed documents or exhibits, with all well-pleaded allegations of fact conceded as true. No evidence may be admitted to support or controvert the exception. The exception must be overruled unless the allegations affirmatively established that under no facts admissible under the allegations of the petition does plaintiff have a cause of action, and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. * * * " Wheelahan v. State, etc., 376 So.2d 576, 577 (La.App. 4th Cir. 1979).

It is our opinion that the trial court should not have maintained the exception of no right of action but should have dismissed the plaintiff's suit as to Krementz, Avondale and R.P.M. on the failure of the petition and the amended petitions to state a cause of action.

LSA-C.C.P. art. 927 provides that failure to state a cause of action may be noticed by either the trial or appellate court of its own motion.

The plaintiff argues on appeal that he was employed by R.P.M. as a laborer and only to that extent should be considered an employee of the company, citing the provisions of LSA-R.S. 23:161,...