Reagan v. Olinkraft, Inc.Reagan v. Olinkraft, Inc.
Shotwell, Brown & Sperry by L. Michael Ashbrook, Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, Fontenot & Hurlburt by J. Winston Fontenot, Lafayette, for defendants-appellees.
Before PRICE, MARVIN and JASPER E. JONES, JJ.
En Banc. Rehearing Denied January 18, 1982.
JASPER E. JONES, Judge.
This is a wrongful death and survival action. Plaintiff appeals from a judgment sustaining an exception of no cause of action on the grounds that benefits under the workers’ compensation statute constitutes plaintiff‘s exclusive remedy.
The decedent, Bobby Reagan, was employed as a back tender on a paper machine at a paper mill in West Monroe, Louisiana. Decedent worked very near to a paper machine which had large spinning rollers. While at work on Octobеr 6, 1979 decedent became entangled in the rollers and was pulled into the paper machine, crushed and killed.
Reagan‘s widow, Linda, individually and as tutrix of her three minor children, brought this action against Olinkraft, Inc., the former operator of the mill, Manville
All of the defendants, with the exception of Dominion Engineering, filed exceptions of no cause of action on the grounds that plaintiff‘s sole remedy was for benefits under the workers’ compensation statute.
Plaintiff‘s initial petition was drafted as an ordinary negligence action; she аmended the petition in an effort to allege an intentional tort by amending paragraph 20 to read as follows:
Defendants Olinkraft, Inc. and Manville Forest Products Corporation, their agents, employees, and officers and pаrticularly James H. Willis, John W. Dollar, Leonard Deney, Ted McCroklin, John D. Mullens, Don Harrison, and Don Woods, Sr., were well aware of the inherently dangerous operating condition and procedures associated with Number 3 Paper Machine in Plаnt Number 31 long before and on October 6, 1979. Said defendants were aware of prior accidents involving this same machinery and/or identical and/or essentially the same machinery. Safety and staff meetings at all levels of management involving all of defendants to discuss and to decide upon a future course of action, prior to October 6, 1979 as to the manner, method, modification, etc. of Number 3 Paper Machine and all other similar machines having the samе inherently dangerous operating conditions and procedures. On each occasion of the various meetings, described above, two options were discussed, to-wit:
A. Shall we continue Number 3 Paper Machine and the othеr similar type machines which have the same inherently dangerous operating conditions and procedures in the way we have done in the past? or
B. Shall we spend the necessary moneys to modify and make safe Number 3 Papеr Machine and other similar type machines to eliminate the inherently dangerous operating condition and procedures?
Full, complete, and detailed in-depth discussions with cost analysis for modifications were had by all of thе defendants. Defendants were advised by each other and particularly by their Safety Director and his subordinates that a fatality could result from Number 3 Paper Machine and other similar type machines which were inherently dangerous, both as to operation and procedure of operation, unless modifications were made to the machinery to make them safe.
Defendants made a decision, being fully aware of all the ramifications as outlined above. They consciously and intentionally decided to continue the inherently dangerous operation and procedures of Number 3 Paper Machine and other similar or identical type machinery rather than spend the nеcessary moneys to make them safe. Defendants consciously refused to make the necessary safety modifications to Number 3 Paper Machine, which if they had been made would have prevented the death of Bobby G. Reagan. The above described intentionally and consciously perceptive acts of defendants constitutes the commission of an intentional tort because the results of their concious [sic] and perceptive decisiоn to refuse to act could have been reasonably anticipated to result. (Johnson v. Chicago Mill and Lumber Co., 385 So.2d 878 La.App. 2d Cir. 1980). [sic] The acts of the individual above named defendants is imputed to Olinkraft, Inc. and Manville Forest Products, Inc. pursuant to the doctrine of respondeat superior.
The trial judge sustained the exceptions of no cause of action based on
On appeal plaintiff assigns as error the sustaining of the exceptions of no cause of action by the trial judge in viеw of the allegations of paragraph 20 of the amended petition. The issue is: does the petition allege an intentional tort? We conclude that it does not and affirm.
The crux of the allegations of amended paragraph 20 of the petition is that the defendants made an economically motivated decision not to improve the safety of the paper machine and that it could be “reasonably anticipated” that Reagan would diе as a result. The allegations of paragraph 20 are the only ones not clearly within the scope of the provisions of
The function of the exception of no cause of action is to test the legal sufficiency of the petition. The language of the petition is construed in favor of its sufficiency. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). The well pleaded allegations of fact in the petition are taken as true and the exception is triable on the fact of the pleadings. Eschete v. City of New Orleans, 258 La. 134; 245 So.2d 383 (1971). Thus, this case turns on whether or not, under any reasonable construction of the petition, assuming its allegations of fact to be true, there is an intentional tort alleged.
In Bazley, supra, the supreme court sets out what is required for an act to be intentional: the actor must either (1) desire the physical results of his act or (2) know that the consequences are certain, or substantially certain, to result. There is no allegation that the defendants desired the death of Bobby Reagan. Our inquiry is can the allegations of the petition be reasonably construed to mean that when the defendants decided not to alter the machine they knew that it was substantially certain that Reagan would be killed.
A comparison of the language used in the petition and the test set forth in the Bazley case is appropriate at this point. The petition alleges that the death “could have been reasonably anticipated.” In Websters New Twentieth Century Dictionary (2d Ed.) the definitions of anticipate include to foretaste or foreseen. Webster‘s indicates that expect is a strоnger word than anticipate. “Reasonably” means moderately or fairly. State v. Dority, 55 N.M. 12, 225 P.2d 1007 (1950); Horn v. Territory, 8 Okl. 52, 56 P.
Bazley requires that the result be at least “substantially certain.” “Substantially” means about, practically, nearly, almost, essentially or virtually. St. Louis-Southwestern Railway Company v. Cooper, 496 S.W.2d 836 (Mo.1973); American Fed. of Government Emp. AFL-CIO v. Rosen, 418 F.Supp. 205 (N.D.Ill.1976). Websters includes “sure” and “inevitable” among its definitions of “certain.” The language of Bazley then might be restated as “virtually sure” or “nearly inevitable.”
It is evident that there is a wide gulf between what the petition alleges and what Bazley requires. This gap cannot be closed under the guise of liberal construction of pleadings. The best the petition can be said to allege is that the defendants knew there wаs a fair chance that Reagan‘s death might result from their decision, while Bazley requires an allegation that the defendants knew there was almost no chance of anything other than death resulting.
Even if plaintiff proved all of the allegations of the petition, she would still be limited to workers’ compensation benefits by
The result we have reached is supported by the case of McDonald v. Boh Bros. Const. Co., Inc., 397 So.2d 846 (La.App. 4th Cir. 1981). In McDonald an injured worker attempted to avoid
The substance of the allegation in McDonald was that the worker had been made to do a very dangerous job. The Fourth Circuit found that was not enough to allege an intentional act. That is the same situation we have here. Plaintiff alleges that Reagan was required to do a very dangerous job, but none оf plaintiff‘s allegations can reasonably be interpreted to mean that the defendants knew it was substantially certain that Reagan would be injured or killed. Thus, the allegations in plaintiff‘s petition fail to allege that Bobby Reagan‘s deаth was the result of an intentional act of appellees within the contemplation of
At appellant‘s cost, the judgment is AFFIRMED.
Notes
Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.