McDonald v. Boh Bros. Const. Co., Inc.McDonald v. Boh Bros. Const. Co., Inc.
Marvin G. Grodsky, New Orleans, for plaintiff-appellant.
Before GULOTTA, GARRISON, and CHEHARDY, JJ.
GULOTTA, Judge.
This executive officer suit for injuries occurring on April 20, 1978 was dismissed on exceptions of no cause of action, no right of action and motion for summary judgment. Plaintiff appeals. We affirm.
Plaintiff‘s petition alleges he was injured in the course and scope of his employment when he fell after his foot caught in a slack cable on a crane boom from which he was descending in response to specific orders given him. He further alleged his accident was approximately caused by certain intentional acts of defendants, in particular the following:
“(a) Intentionally ordering petitioner to an inherently unsafe position requiring him to traverse a slanting, narrow boom without adequate walkway, suspended in the air, with slack cable line atop it;
(b) Intentionally authorizing and ordering work procedures (i. e., having the crane boom raised instead of lowered to the ground, or parallel to it, failing to provide ladder scaffold or other safe means for employees to get to the elevated work site, allowing slack cable to remain draped upon the already narrow and inadequate walkway) so hazardous as to constitute a dangerous trap for the employees under its supervision and with whose safety defendant was charged;
(c) Intentionally authorizing and ordering its employees onto a site of work for its employees which expose them to a great risk of harm;
(d) Intentionally failing to comport with standards of the industry, thereby creating hazardous working conditions.”
In his written reasons for judgment, the trial judge stated the basis for his ruling was this Court‘s decision in Johnson v. Narcisse, 373 So.2d 207 (La.App.4th Cir. 1979). The Johnson case interpreted the words “intentional act“, used in
Plaintiff contends the phrase “intentional act” should be narrowly construed to mean that to be excepted from coverage by the Compensation Act, a defendant merely need have intended the act which led to plaintiff‘s
In Bazeley v. Tortorich, 397 So.2d 475 (La.1981), upholding the constitutionality of
Plaintiff‘s argument in our case is substantially the same as that rejected in Bazley. Applying that test to plaintiff‘s allegations, quoted above, it is clear the acts made the basis of this suit arose solely in the context of the employment relationship and were not intentional as defined in Bazley.
The petition here does not allege that defendants desired or intended the harm plaintiff suffered or believed the result was substantially certain to follow.
Although plaintiff‘s allegations are couched in terms of intent, such phraseology is merely conclusory. The substance of his allegations clearly depicts acts that, if proven, would be negligent. His petition does not allege “intentional acts” within the meaning of
Accordingly, we conclude plaintiff has failed to state a cause of action in tort and his exclusive remedy against defendant lies in workman‘s compensation.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
CHEHARDY and GARRISON, JJ., concur and assign reasons.
CHEHARDY, Judge, concurring.
The Supreme Court in Bazley v. Tortorich, 397 So.2d 475 (La.1981) stated:
“* * * Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Waldrop v. Vistron Corp., 391 So.2d 1274 (La.1980); McGuire v. Honeycutt, 387 So.2d 674 (La.App.3d Cir. 1980); Johnson v. Chicago Mill & Lumber Co., 385 So.2d 878 (La.App.2d Cir. 1980); Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App.1st Cir.) writ denied 386 So.2d 359 (La.1980); Bourgoyne v. City of Baton Rouge, 380 So.2d 131 (La.App.1st Cir. 1979), cert. denied 382 So.2d 164 (La.1980); Frazier v. Woodward, 378 So.2d 209 (La.App.4th Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App.4th Cir. 1979); Tobin v. Jacobson, 369 So.2d 1161 (La.App.1st Cir. 1979); Guidry v. Aetna Casualty & Surety Company, 359 So.2d 637 (La.App.1st Cir.) writ denied, 362 So.2d 578 (La.1978). * * *”
The Court then goes on to state:
“* * * Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, § 8A, Comment; Prosser, supra, § 8.”
It thus appears that earlier court of appeals’ interpretation of the meaning of “intent” in
“Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does. An anarchist who throws a bomb into the royal carriage may actually wish to kill no one but the king; but since he knows that the death of others in the carriage is a necessary and almost inevitable incident to that end, and nevertheless goes ahead with the deed, it must be said that he intends to kill them. The man who fires a bullet into a dense crowd may fervently pray that he will hit no one, but since he must believe and know that he cannot avoid doing so, he intends it. The practical application of this principle has meant that where a reasonable man in the defendant‘s position would believe that a particular result was substantially certain to follow, he will be dealt with by the jury, or even by the court, as though he had intended it. The driver who whips up his horses with a loud yell while passing a neighbor‘s team will not be credited when he denies that he intended to cause a runaway; and the defendant on a bicycle who rides down a man in full view on a sidewalk where there is ample room to pass may find the court unwilling to accept his statement that he did not mean to do it.”
I concur in the result not because the allegations in plaintiff‘s petition do not comply with Johnson v. Narcisse, 373 So.2d 207 (La.App.4th Cir. 1979), but because the allegations do not satisfy the new definition of “intent” as laid down by Bazley v. Tortorich, supra.
GARRISON, J., concurs for the reasons assigned by CHEHARDY, J.