Tapia v. Schwegmann Giant Supermarkets, Inc.

• Decision Date: 26 November 1991
• Docket Number: No. 91-C-1786,91-C-1786
• Citation: Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806 (La. App. 1991)
• Parties: Ada TAPIA v. SCHWEGMANN GIANT SUPERMARKETS, INC. 590 So.2d 806
• Court: Court of Appeal of Louisiana

Page 806

590 So.2d 806

Ada TAPIA v. SCHWEGMANN GIANT SUPERMARKETS, INC.

No. 91-C-1786.

590 So.2d 806

Court of Appeal of Louisiana Fourth Circuit.

Nov. 26, 1991.

Thomas G. Buck, Richard S. Vale, Blue, Williams & Buckley, Metairie, for relator.

Anthony L. Marinaro, Frank A. Silvestri, Silvestri & Massicot, New Orleans, for respondent.

BARRY, Judge.

Ada Tapia filed suit based on the intentional tort exception to the Louisiana Workers' Compensation Act against her employer, Schwegmann Giant Supermarkets, Inc., the store's manager, Jane West, and the Assistant Manager, Theresa Doe. Tapia, a cashier, alleged that she injured her back after she lifted 20 or more frozen turkeys from an elderly customer's basket onto the checkout counter. She had requested assistance which was denied by the manager. Tapia also claims that she put the turkeys into the customer's automobile after being denied assistance from the manager and aggravated the back injury. Tapia then asked the manager and assistant manager to be relieved, but continued to work for three to four hours until a substitute cashier was found.

Tapia further alleged:

The acts and/or omissions of Ms. Jane West and Ms. Theresa Doe were at all times pertinent hereto intentional acts which exposed your petitioner to danger when these managers knew the extreme probability that injury and aggravation of injury would occur. The injurious consequences of these managers' acts were substantially certain to follow said acts or omissions. These managers believed and knew that said injuries, consequences and physical results of their actions were certain or substantially certain to follow.

Schwegmann filed a motion for summary judgment which was denied. Tapia filed a second supplemental and amended petition (the first supplemental is not attached to the application) in which she noted Schwegmann's policy that a porter should be requested for large orders. She also alleged that supervisory personnel "specifically knew that a lifting injury could cause a back injury ...," and that the supervisors knew that an employee should be relieved if she reported an injury, and that relief help was available.

Tapia claimed that the manager and assistant manager "desired to bring about the physical result of their acts, or believed that they were substantially certain to follow from their orders, i.e., they intended Ms. Tapia to handle an order which she was unequipped to handle, without assistance or proper instructions, contrary to Schwegmann's policy." She claimed her injuries "followed from defendant's intentional acts, and were certain or substantially certain to follow."

Schwegmann's second motion for summary judgment based on Dycus v. Martin Marietta Corporation, 568 So.2d 592 (La.App. 4th Cir.1990), writ denied 571 So.2d 649 (La.1990), ¹ was also denied. Schwegmann now seeks review of that denial.

"Intentional act" in La.R.S. 23:1032B means "intentional tort." Intent means "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." The exception has been narrowly interpreted pursuant to the legislature's policy decision. Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981). "Substantially certain" can be restated as "virtually sure" or "nearly inevitable." Reagan v. Olinkraft, 408 So.2d 937 (La.App. 2d Cir.1981), writ denied 412 So.2d 1095 (La.1982).

Mere knowledge and appreciation of a risk does not constitute intent. Reckless or wanton conduct by an employer does not constitute intentional wrongdoing. Gross negligence, disregard of safety regulations or the use of safety equipment is not sufficient. Williams v. Gervais F. Favrot Company, Inc., 573 So.2d 533 (La.App. 4th Cir.), writ denied 576 So.2d 49 (La.1991). Nationwide, policy...