Sanders ELLIS, et al.
v.
NORMAL LIFE OF LOUISIANA, et al.
Court of Appeal of Louisiana, Fifth Circuit.
*423 Timоthy Thriffiley, Chalmette, for plaintiffs/appellants Sanders Ellis, Individually and as Natural Tutor of the Minor Child, Terrence Joseph Ellis.
Lynn L. Lightfoot, New Orleans, for defendant/appellee Normal Life of Louisiana, Inc.
Before GAUDIN, DUFRESNE and CANNELLA, JJ.
CANNELLA, Judge.
Plaintiff, Sanders Ellis, individually and as natural tutor of his minor child, Terrence Ellis, appeals from a summary judgment which dismissed his suit for the wrongful death of his wife, Sarah Ellis. She died from a heart attack while at work for defendant, Normal Life of Louisiana (Normal Life). We reverse the summary judgment and remand.
Sarah Ellis was employed by Normal Life for several years as a home staff worker. On April 14, 1991 she died of a heart attack while working the 11:00 pm to 9:00 am shift at the Nel Court home in Gretna, Louisiana. The home is a group or community residence for six retarded adults, most of whom also have behavioral problems. Normal Lifе, a private corporation, operates other similar homes in Jefferson Parish pursuant to state and federal laws and regulations.
On March 6, 1992, plaintiff sued Normal Life and its insurer, alleging that the intentional acts of Normal Life in under-staffing the home on the weekends during the 11:00 pm to 9:00 am shift caused or contributed to the death. He contended that Normal Life knowingly required Sarah Ellis to work in a homе without adequate home staff workers or medical staffing and facilities, when it knew of the stressful working conditions and knew that her working without adequate staffing and facilities was substantially certain to result in injury and/or death. He further asserted that Normal Life knowingly required Sarah Ellis to work under stressful conditions when it knew of her diabetic condition and obesity and that not providing adequate assistance was substantiаlly certain to result her injury and/or death. The petition sought damages under La.C.C. art. 2315.1 and art. 2315.2.
In response, defendants filed a peremptory Exception Of No Cause Of Action, which was denied on July 8, 1992.
Next, defendants filed an answer and later a Motion For Summary Judgment, alleging that the evidence failed to show an intentional tort. Following a hearing, the trial judge granted the Motion For Summary Judgment. In the judgment he stаted that "... this suit against Normal Life of Louisiana, Inc. is hereby dismissed at plaintiff's cost." In his reasons for judgment, the trial judge stated that the submitted documents showed that there were no genuine issues of material fact and that Normal Life did not intentionally cause Sarah Ellis' death.
On appeal, plaintiff asserts that the trial judge erred in granting the Motion For Summary Judgment. First, he contends that the trial judge found no conscious intent on the part of Normal Life, but failed to address the question of whether the injury was substantially certain to follow from its acts. Second, plaintiff asserts that even if he is not entitled to pursue a tort action under the workers compensation statute, he still has a cause of action in tort, since Sarah Ellis' heart attack is not a compensable disease under the workers comрensation act precluding recovery for workers compensation benefits, according to La.R.S. 23:1021(7)(e).
In his first argument, plaintiff asserts that a Motion For Summary Judgment is seldom appropriate when the issue involves intent or knowledge, citing Smith v. Estrade,
Plaintiff contends that the evidence shows that many of the residents were violent with each other and with the staff and, at times, requirеd physical restraint. He asserts that the depositions of Iona Smith, the home manager, and Sonya Carter, one of the staff, show that one client continually ran away, another was in the habit of biting, one client routinely got a kitchen knife to threaten the others and the other clients would get into fights, pulling hair and striking each other and/or the staff members. He asserts that the records show that somе of the clients needed physical assistance and some verbal help in getting washed and dressed when they awoke in the morning. Plaintiff claims that the job of restraining the residents when necessary was part of the job of the home staff workers, in addition to their normal duties. He argues that these conditions created such stress that it required two workers to handle the residents during the 11:00 pm to 9:00 am shift on the wеekends, as well as during the week, since the residents usually awoke at 5:00 am.
Plaintiff asserts that the staff members complained about inadequate staffing in the late evening/early morning shift and that Normal Life was aware of Sarah Ellis' diabetes and obesity, which were contributing factors to her heart attack. Plaintiff claims that these contentions raise the issue of whether Sarah Ellis' death was not just cоnsciously intentional, but substantially certain to follow, as set forth in the leading case on intentional tort, in the workers compensation area, Bazley v. Tortorich,
In response, defendants argue first that a Motion For Summary Judgment is an appropriate procedural tool to dispose of the issue of the intentional tort exception to the workers compensation law, citing King v. Schuylkill Metals Corporation,
Defendants also contend that the facts do not show that the injury was substantially certain to follow. They assert that understaffing is an allegation related to unsafe working conditions, which are not considered by the courts to mean that the injury is substantially certain to follow. They cite Posseno v. Security Insurance Group,
A motion for summary judgment is properly granted when the pleading, depositions, answers to interrogatories, together with affidavits, if any, show there is no genuine issue as tо material fact and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966.
The petition filed by plaintiff states, inter alia, that on April 14, 1991, during the 11:00 p.m. to 9:00 a.m. shift, Sarah Ellis suffered a fatal heart attack while in the course and scope of her employment with Normal Life. The petition further states that her death was caused solely and proximately by the intentional actions of defendants аnd caused damages in the following respects:
"A) Knowingly requiring Sarah Ellis to work in an understaffed home when defendants knew of the stressful working conditions to which decedent was subjected, and *425 knew that her working without proper staffing in such conditions was substantially certain to result in injury and/or death to decedent;
B) Knowingly requiring Sarah Ellis to work in the home without adequate medical staffing and facilities when defendаnts knew of these inadequacies and knew that decedent's working in such conditions was substantially certain to result in injury and/or death to decedent;
C) Knowingly requiring Sarah Ellis to work under stressful conditions without adequate assistance when defendants knew of decedent's diabetic condition and obesity, and knew that her working without proper assistance was substantially certain to result in injury and/or death to dеcedent.
Further, that as a result of the actions of defendants, Sarah Ellis suffered damages, including pain and suffering and medical expenses, which the petitioners are entitled to recover pursuant to the provisions of LSA-C.C. Article 2315.1.
As a result of the actions of defendants, the petitioners have suffered damages due to the wrongful death of their wife and mother, including but not limited to mental anguish, lоss of love and affection, loss of service, loss of society, and funeral expenses, which petitioners are entitled to recover under the provisions of LSA-C.C. Article 2315.2."
The petition's statements assert a cause of action for an intentional tort by defendants and also a cause of action for negligence, both of which fall within La.C.C. art. 2315. The petition does not speсifically cite the workers compensation act and Normal Life raises this defense for the first time in its exception of no cause of action, which was denied by the trial judge. However, before we can determine whether or not the trial judge correctly granted the Motion For Summary Judgment, we must first decide whether or not this case falls within the workers compensation act or if it is a tоrt action not subject to the defenses available to defendant under the workers compensation act.
R.S. 23:1032 provides that the employee's exclusive remedy for an on the job injury, sickness or disease is the workers compensation act. The pertinent provision states:
A. (1)(a) The rights and remedies herein granted to an employee or his dependent on account оf an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, her personal representatives, dependents, or relations, against his employer, or any principal...
B. Nothing in this Chapter shall affect the liability of the employer, ... resulting from an intentional aсt.
(Emphasis Added)
Heart-related or perivascular injuries "shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter ..." unless two elements are proven by clear and convincing evidence. La.R.S. 23:1021(7)(e). First, plaintiff must prove that the physical work stress was extraordinary and unusual compared to the stress or exertion experienced by the average employee in that occupation. Second, plaintiff must prove that the physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death. The burden of proof in such cases is, and was intended to be, more stringent than the preponderance of the evidence standard imposed in workers compensation cases prior to the enactment of this provision in 1990. The cases applying the new burden of proof are sparse, as we found in our recent decision of Harold v. La Belle Maison Apartments, 93-867 (La.App. 5th Cir. March 29, 1994);
In this case, plaintiff's allegations do not show by clear and convincing evidence that the heart attack was the predominant result of any extraordinary work stress and that it was the predominate cause of the death. *426 Thus, Mrs. Ellis' death resulted from a non-compensable disease under the workers compensation act.
The question of whether an employee is entitled to pursue a tort action against his employer when his injury is not compensable under the workers compensation act has been addressed in eleven cases in the decades since the workers compensation act was first enacted. In nine of the eleven cases, thе Louisiana Supreme Court and the first, second and third circuit courts of appeal found the plaintiff was entitled to bring a tort action against the employer when the injury was not compensable under the act. Boyer v. Crescent Paper Box Factory,
The second circuit questioned Boyer and its progeny and distinguished its own prior decisions (Faulkner and Clark) in the 1987 case of Swilley v. Sun Oil Co.,
In Atchison v. May,
The act, which is social legislation, was passed for the joint benefit of labor and management in order to insure that employees who became disabled as a result of their labors in hazardous industries would have, during the period of their disability, a weekly income for the upkeep of themselves and their families. It was also deemed advisable to provide for compensation, in cases of death, to the persons dependent upon the employee for support so that these persons would not be entirely bereft of funds during the period of time following thе employee's death when they, of necessity, were compelled to reconstruct their lives and seek a means of support, thus avoiding the possibility that these persons would become public charges. In order that this end might be accomplished, the Legislature provided for sacrifices to be made by both the employer and the employee. The employee wаs required to waive the right granted him under the general law, Article 2315 of the Civil Code, in consideration of receiving a fixed percentage of his wages during the period of *427 his disability. The employer, on the other hand, was deprived of the defenses afforded to him by the general law and he was assured that, in case any of his employees were injured, they would be entitled to no more than the аmount stipulated in the statute as compensation during the period of disability. Id. at 788.
In a recent Louisiana Supreme Court decision, the court pointed out that "the dominant purpose ... was not to abrogate existing tort remedies ... Rather, it was to provide social insurance to compensate victims of industrial accidents because it was widely believed that the limited rights of recоvery available under the general tort law was inadequate to protect them." Roberts v. Sewerage and Water Board of New Orleans, 92-2048 p. 7 (La. 3/21/94),
In 1993, the court in Hunt held that an employee who suffered a heart attack on the job was entitled to pursue a negligence claim against the employer when the worker's claim did not fall into the exceptions to La. R.S. 23:1021(7)(e)(i) and (ii) and, as a consequence, was deprived of the benefits of the workers compensation act. The court discussed thе purpose of the workers compensation act, the amendment adding the exclusion for heart attack victims except in certain circumstances and the prior law. The Hunt court relied on the language of the exclusivity provision of the workers compensation statute, La.R.S. 23:1032(A)(1)(a) and of La. R.S. 23:1021(7)(e) as being clear and unambiguous.
Based on the jurisprudence and the clear language of the statute, we agree with the latest statement on the issue in Hunt. Consequently, we find that when plaintiff suffers a non-compensable workers compensation injury or disease, a cause of action exists in the general tort law. Thus, the next question is whether plaintiff in this case has pled a viable tort suit against the deceased's employer.
Defendant argues that plaintiff failed to plead a negligence action in his petition. We disagree. Louisiana is a fact pleading state under the Louisiana Code of Civil Procedure. See: La.C.C.P. art. 862. "As long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the `theory of the case' doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished." First South Production Credit Association v. Georgia-Pacific,
Finally, the trial judge did not rule on the negligence issue, apparently because he believed that the intentional tort was the sole issue before him. However, since there is another issue (negligence) arising from the same occurrence, the trial court judgment, as it stands on the intentional tort issue, is a partial summary judgment. Under Everything on Wheels v. Subaru South, Inc.,
Accordingly, the judgment of the trial court is hereby reversed and the case remanded for further proceedings consistent with this opinion.
Costs of this appeal are to be paid by appellee.
REVERSED AND REMANDED.