Peralta v. PerazzoPeralta v. Perazzo
Brian C. Bossier, Tara Nunez Smith, Erin H. Boyd, Christopher T. Grace, III, Blue Williams, L.L.P., Metairie, Louisiana, for Defendant/Appellee.
FREDERICKA HOMBERG WICKER, Judge.
Plaintiff/appellant Danilo Peralta appeals a summary judgment granted by the Twenty-Fourth Judicial District Court in favor of defendant/appellee Northrop Grumman Ship Systems Inc. We affirm.
In October 2003, Peralta filed a Petition For Damages against Northrop and its employee, John Perazzo. Peralta alleged that he was working as a longshoreman for Northrop on July 30, 2001 and was in the course and scope of his employment when Perazzo intentionally threw a chair which hit him in the leg and caused injury. Peralta averred that the injury was caused by Perazzo‘s intentional act, and that because Perazzo was in the course and scope of his employment at the time of the incident, his actions were imputable to Northrop.
Following discovery, Northrop filed a Motion For Summary Judgment, alleging
The essence of plaintiff‘s argument in the present case is that Perazzo‘s intent to injure him is a contested issue of fact. He contends that the court weighed the evidence and made credibility evaluations to determine intent. Under the LHWCA,
Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court‘s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov‘t, 04-0066 (La.7/6/04), 880 So.2d 1. The movant bears the burden of proof. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant‘s burden on the motion does not require him to negate all essential elements of the adverse party‘s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party‘s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
A “material fact” to be one in which “its existence or nonexistence may be essential to plaintiff‘s cause of action under the applicable theory of recovery.” Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine issue for trial.
Although summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, the Supreme Court has acknowledged that “summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.” Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730.
In the record on appeal is the decision by the Department of Labor awarding benefits pursuant to
Also attached to the record was a partial transcript in which Peralta testified that on the morning of the incident, Perez came into the office angry, and asked who was messing with his desk. When no one answered, he grabbed the desk and threw it against the wall. Then he pulled a chair and threw it behind him. He went off and came back, asking Peralta what was wrong with the job he had done on the weekend. After Peralta‘s reply, Perez cursed, said he felt like shooting someone, and then grabbed his chair again, throwing it behind him, and striking Peralta. Perazzo‘s affidavit admitted into the record stated in pertinent part that he grabbed the chair and slammed it down by his desk, striking Peralta by accident. He was not aware that Peralta had been hit until later when Peralta came in and requested a pass to go to first aid. Jamey St. Amant, Al Faunce, and Earl Jenkins, employees present at the time, stated in their individual affidavits that Perazzo became upset, cursed, and shoved his chair behind him, hitting Peralta by accident.
Peralta‘s opposition to Summary Judgment included his own affidavit, in which he avers that Perazzo intentionally cursed, said he would kill someone, and threw the chair at him. According to the affidavit, Perazzo had the specific intent to hit and injure him. Interestingly, also attached to the opposition was another affidavit from St. Amant, in which he first stated that he had not been offered the opportunity to speak with his personal attorney prior to the affidavit sworn in favor of Northrup. The affidavit went on to state that “Perazzo intentionally cursed at Danilo Peralta, loss[sic] control and then threw a chair at Danilo Peralta.” In two other portions of the same affidavit, St. Amant deposed only that that Perazzo “threw a chair which struck Danilo Peralta”
In its Reasons For Judgment, the trial court considered the narrow exception to
The federal courts have carved out an exception to exclusive liability provisions where the injury inflicted is the result of an intentional act. Houston v. Bechtel Associates Professional Corp., 522 F.Supp. 1094 (U.S.D.C.1981). The overwhelming weight of authority is that “the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct short of genuine intentional injury.” Id. Nothing short of a specific intent to injure the employee falls outside the scope of
Knowledge and appreciation of a risk is not the same as the “intent” to cause
injury. Neither knowingly permitting a hazardous work condition to exist, nor willfully failing to furnish a safe place to work, nor even willfully violating a safety statute constitutes the requisite intent.
In Houston, the court held that an action by an employee against his employer alleging willful, wanton, reckless, and unlawful misconduct is barred.
A plaintiff may not satisfy his burden under
On de novo review, we agree with the trial court that Peralta did not carry his burden of proving the existence of a material fact regarding Perazzo‘s specific intent to injure him. Peralta, in his opposition affidavit sworn after his testimony before the Labor judge, did not attest that Perazzo was facing him when he threw the chair, rather than behind him as he testified at the hearing. Similarly, St. Amant‘s second affidavit does not change his earlier statement that Perazzo threw the chair behind him. In point of fact, no witness testified that Perazzo was looking at Peralta when he threw the chair; rather, the evidence that Perazzo was not facing Peralta is uncontradicted.
Peralta has offered no evidence that he will ever be able to prove anything more at a trial on the merits than that Perazzo threw a chair and that the chair hit him. In the absence of anything more than plaintiff‘s conjecture as to intent, there is no genuine issue of material fact concerning Perazzo‘s actions. Peralta suffered an accidental injury caused by Perazzo‘s willful and reckless conduct, which as a matter of law precludes him from maintaining a tort action against Northrop.
Inasmuch as Peralta failed to establish any grounds for the granting of a new trial, the court properly denied the motion.
For the foregoing reasons, the judgment is affirmed. Plaintiff is taxed all costs of this appeal.
AFFIRMED.