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The Opinions handed down on the 4th day of September, 2002 BY JOHNSON, J.: 2001-C- 2123 BRADLEY COLE, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, LEAH ASHTON COLE AND DENISE COLE, INDIVIDUALLY v. STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS(Parish of E. Baton Rouge) We find, based on the applicable law and facts of this case, that the lower courts committed no manifest error in finding the injuries Cole sustained were the result of the intentional tort of battery upon him by DPSC workers, as the evidence clearly supports such a finding. However, we conclude that there was no evidence to support the lower courts finding that Cole sustained a serious closed head injury as a result of the battery. Because the court awarded general damages, future medicals and lost wages without delineating a portion of the head injury, we must remand this matter to the appellate court to re-assess the award of damages and exclude the amount apportioned for a closed head injury. AFFIRMED in part REVERSED in part. REMANDED. VICTORY, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons. KNOLL, J., dissents and assigns reasons.

9/4/02 SUPREME COURT OF LOUISIANA NO. 01-C-2123 BRADLEY COLE, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD, LEAH ASHTON COLE, AND DENISE COLE, INDIVIDUALLY Versus STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIRST CIRCUIT, PARISH OF EAST BATON ROUGE JOHNSON, Justice. The State, through the Department of Public Safety and Corrections appeals the judgment of the lower courts, finding that the plaintiff, Bradley Cole, was the subject of an intentional tort at his place of employment, and was therefore entitled to damages in tort. We granted the State's writ application to determine the correctness of the lower courts' decisions. Cole v. State of Louisiana, through the Department of Public Safety and Corrections, 2001 WL 1660889, __ So.2d __ (La. 12/7/2001). For the reasons stated herein, we conclude that the evidence supports the lower courts' findings that plaintiff was the subject of the intentional tort of battery, but the lower courts erred in awarding damages for the closed head injury. FACTS AND PROCEDURAL HISTORY Plaintiff, Bradley Cole, was a correctional officer at the Phelps Correctional Center in DeQuincy, Louisiana, where he had been employed for approximately seven years and was a member of the tactical unit. The tactical unit was a group of correctional officers trained to take charge of any situation involving inmate riots or disturbances. Cole was injured during a training exercise on October 19,

1995, when he traveled with his unit to Hunt Correctional Center for training with tactical units from Hunt and other institutions around the State. On September 17, 1996, Cole, individually, and on behalf of his minor child and Cole's wife, Denise Cole, filed suit against the Department of Public Safety and Corrections (DPSC) alleging Cole was intentionally battered by other officers during the DPSCcontrolled exercises. A five-day bench trial was held to determine liability on the merits. Cole, along with several officers who participated in the training exercises, testified at trial as to the events that transpired throughout the course of the exercises on the date of Cole's injury, as well as to their past experiences with these types of training exercises. The testimony presented at trial revealed that on the date of the injury, there was a total of five training exercises conducted at the Hunt facility. These training exercises were simulations to prepare officers for inmate disturbances or riots with some officers assuming the role of prisoners. Cole participated in the first two exercises of the day without injury. The third exercise, in which Cole was injured, took place on the firing range and was called the "angry crowd exercise." In this exercise, Cole and the Phelps unit role-played as inmates, while two other institutions role-played as guards. Cole testified that prior to this date, his tactical unit had never participated in training exercises with other institutions and that during previous exercises with his unit, when batons were used, the batons were wrapped in Styrofoam and officers wore protective pads. However, during this angry crowd exercise, unpadded batons were used and the officers only wore helmets for protection. Cole described the exercise as a "free-for-all." He testified that someone grabbed him and started hitting him on his left arm at full force. He testified that even though he shouted "red," the code word which was supposed to
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stop the activity, he continued to get hit. He testified that at some point his helmet came off and he continued to be struck with the unpadded batons. Cole could not identify which officer(s) struck him. According to the record, Cole was seen in the emergency room at St. Patrick's Hospital where he complained of pain in his left arm, shoulder, and neck. The first report of injury filed with his employer stated that Cole had been injured during a tactical unit practice and listed complaints of injury to his left hand, arm and shoulder. Colonel Milton Scarbrough, the tact team commander at Phelps, testified that he knew batons would be used but did not expect that full force strikes would be used during the exercise. He did, however, state that during the angry crowd exercise, he expected that one could get "banged up"or "hurt." Colonel Scarbrough testified that he first learned that Cole was injured at the end of the last exercise when Cole approached him and stated that he had been "whacked" in the arm. Scarbrough stated that Cole did not tell him about yelling "red"- the code to stop the blows- nor did he tell him that he was continually struck after yelling "red." Roy Williams, Lieutenant Colonel at the Phelps Center, who also participated in the exercises in question, was able to identify Cole in still photographs and video tape at trial and testified that Cole in fact had his helmet on until the exercises were complete. Colonel Williams testified "tact team training is a physical type of training. We very commonly have done various exercises, gas training, forced cell entries where the officers could reasonably expect to kind of get scuffed up and might be red or bruised, but certainly if we thought it was a significant injury, we would get them to medical [sic] and have them treated. And we tried to avoid that to the extent possible, but it is just a physical type training." Captain John Harvey also participated in the angry crowd exercise and
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testified that the exercise just "broke down," describing it as "chaotic." Captain Harvey explained that "there really was no order to it after everything got started." After weighing the testimony and evidence, the trial court, without elaboration, written or oral, rendered judgment in favor of Cole, finding that Cole had established that DPSC was liable for his injuries. Subsequently, the trial court heard oral argument on the issue of quantum and rendered judgment awarding $675,000 in general damages, $157,000 in future medical damages, and $914,390 in lost wages, subject to credit for workers' compensation payments. The trial court also awarded damages for loss of consortium to Cole's wife and daughter, $75,000 and $35,000, respectively. The court of appeal, in an unpublished opinion, affirmed the judgment of the trial court finding no manifest error. Relying on Rosell v. ESCO, 549 So.2d 840 (La. 1989), found that although the acts of DPSC employees in striking Cole were not malicious, these acts were nonetheless harmful and done with intent. The court also found that there was no manifest error in the trial court's finding that Cole received serious injuries from the battery he received, including brain trauma related injuries, headaches, and injuries to his neck and shoulder and that these injuries resulted from the intentional battery. DPSC now appeals to this Court asserting the same assignments of error. DISCUSSION Generally, any action by a worker against his employer for injuries suffered during the course and scope of employment would be exclusively through the Workers Compensation Act, La. R.S. 23:1032, which provides immunity from civil liability in favor of an employer. It is well settled that under the provisions of La. R.S. 23:1032, a worker is ordinarily limited to recovering workers'
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compensation benefits rather than tort damages for these injuries. However, Sec. 1032(B) provides an exception to this exclusivity when a worker is injured as a result of an employer's intentional act. White v. Monsanto Company, 585 So.2d 1205 (La. 1991); Mouton v. Blue Marlin Specialty Tools, Inc., 2001-648 (La. App. 3 Cir. 10/31/01), 799 So.2d 1215; LaPoint v. Beaird Industries, Inc., 34,620 (La. App. 2 Cir. 5/9/01), 786 So.2d 301; Gallant v. Transcontinental Drilling Company, 471 So.2d 858 (La. App. 2 Cir. 1985). When a plaintiff sustains damages as a result of an intentional battery committed by a co-employee during the course and scope of employment, the exclusivity provisions of the Louisiana Workers' Compensation Act do not apply. See Quebedeaux v. Dow Chemical, 2001-2297 (La. 6/21/02), 820 So.2d 542. Thus, we must now determine whether the lower courts erred in finding that the injuries Cole sustained were suffered as a result of "intentional acts"of DPSC employees and, therefore, not subject to the workers compensation statute. DPSC argues that the trial court committed manifest error in finding that Cole was intentionally battered, and thus, the intentional act exception to the workers' compensation act does not apply. DPSC relies on Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208, wherein this court had occasion to address the issue of the intentional act exception to the Workers' Compensation Act. In that case, the employee was instructed by his foreman to move a sandblasting pot which weighed approximately 350 to 400 pounds empty. The pot had warning stickers on it, required by OSHA, which read "Do Not Move Manually." All parties conceded the proper way to move the pot was to affix it to a pallet and move it with a forklift or heister. At previous job sites, the pot was moved by a forklift. However, the employer decided on this occasion that a forklift or heister was not necessary to remove the pot from the pallet. The
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foreman twice asked "upper management" for a tow motor or forklift to move the metal pot, but the requested equipment was never supplied. The foreman testified because he feared someone would eventually get hurt moving the pot manually, he sometimes moved the pot manually himself. When the plaintiff, Reeves, attempted to move the pot, it fell on him crushing his knee and injuring his back. In reversing the lower courts' finding that an intentional tort had been committed, this Court examined and summarized the history of the Workers' Compensation Act and the intentional act exception as follows: As amended in 1976, Section 1032(B) reads: 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. La. R.S. 23:1032(B). The legislative history is very enlightening as to the intent of the legislature in drafting this exception. The amendment was introduced as House Bill No. 354 and contained an exception from the exclusive coverage of the Act for the liability of the employer resulting from "an intentional or deliberate act." The House debated and rejected two amendments offered on the bill. The first amendment would have provided an award of double the normal compensation against an employer when the death, injury or disease "is caused by the employer's violation of a recognized safety rule or regulation, his failure to provide a safety device required by a recognized safety rule or regulation or by a statute, or by gross negligence on the part of a supervisory employee ...." Official Journal of the House of Representatives, June 4, 1976, H.B. 354, p. 20. The second amendment would have provided that the exclusive coverage of the Act did not apply "if such injury or compensable sickness or disease is caused by the gross negligence, as hereinafter defined, of said party or parties. Gross negligence exists when there is such disregard of the interest of others that the tortfeasor's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonable careful man under like circumstances. Ordinary negligence sufficient to sustain a cause of action under Article 2315 of the Louisiana Civil Code is not sufficient to constitute gross negligence as defined in this section." Official Journal of the House of Representatives, June 4, 1976, H.B. 354, p. 21. The Senate likewise debated and rejected two similar amendments. Official Journal of the Senate, July 12, 1976, p. 42. The Senate also removed the words "or deliberate" from the bill without objection. Official
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Journal of the Senate, July 12, 1976, p. 41. As commentators have stated, "[t]he only reasonable conclusion to be drawn from the legislative process is that both houses of the legislature rejected attempts to make the exception any broader than 'intentional' acts of the employer, thereby giving the exception a narrow scope, limited to conduct which is truly intentional." Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers' Compensation Law & Practice,

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