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ROGER NICKS VERSUS AX REINFORCEMENT COMPANY and LOUISIANA WORKERS' COMPENSATION CORPORATION

NO. 02-CA-1116 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 538-234, DIVISION "B" HONORABLE FREDERICK H. WICKER, JUDGE PRESIDING

FEBRUARY 25, 2003

JAMES L. CANNELLA JUDGE
Panel composed of Judges James L. Cannella, Marion F. Edwards and Clarence E. McManus

LLOYD N. FRISCHHERTZ, JR. WILLIAM J. LEVENSON 1130 St. Charles Avenue
New Orleans, Louisiana 70130

COUNSEL FOR APPELLANT DAVID K. JOHNSON JOHNSON, STILTNER & RAHMAN 2237 S. Acadian Thruway Post Office Box 98001 Baton Rouge, Louisiana 70898-8001 COUNSEL FOR APPELLEES

AFFIRMED.

In this intentional tort suit, Plaintiff, Roger Nicks, appeals from a summary judgment granted in favor of Defendants, his employer, AX Reinforcement Company (AX), and its insurer, Louisiana Workers' Compensation Corporation.
For the reasons which follow, we affirm.

On April 24, 1998, while working for AX, installing rebar for a cement canal wall, the Plaintiff fell from a height of about ten to twelve feet when the wall
hook on his safety belt slipped off of the bar to which it was attached. AX was building a canal that was to have a cement bottom and walls. On the day of the injury, a four man crew was installing steel rebar along the walls of the canal. The walls of the canal were about ten feet high and almost vertical. The job required the workers to place 60 foot sections of steel rebar against the wall of the canal and to tie the rebar in place. In order to tie the rebar, the workers needed to climb the

wall with the use of wall hooks which prevent the worker from falling. Plaintiff's

foreman, Jerry Alley (Alley), provided him with the safety belt which he was using
at the time of the accident. The safety belt's hook had been altered by wiring open

the safety clasp. The hook dislodged from the bar and Plaintiff fell to the ground,
sustammg injunes.

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The Plaintiff filed suit on April 26, 1999, alleging that AX was liable to him
for an intentional tort because he was made to work with a safety belt that had been intentionally altered to disengage the safety device on the wall hook. Plaintiff alleged in his petition that his foreman, Alley, had wired the safety clasp on the wall hook open so that the employees could work faster.

Following discovery, AX filed a Motion for Summary Judgment. As part of
its motion, AX attached parts of the depositions of Plaintiff, Cleveland Mealey (Mealey), a co-worker, and Alley. Alley specifically denied wiring open the safety

clasp on the safety belt hook used by Plaintiff. Further, he stated that he told the
workers about the safety clasp and told them to be careful with it. Although he owned his own safety belt and did not generally use the company belts, he stated that he would have switched belts with his employees had they requested it. Alley

stated that the belt was not safe with the clasp wired open, but that they were used that way and he did not think that anyone would be injured. Plaintiff stated in his
deposition that he had refused to use one particular altered belt in the past and that co-workers would switch with him. He further stated that he had a heated disagreement with Alley over the belts the day before. Nevertheless, on the day of the accident, he took the belt with the safety clasp wired open and put it on to do the job. He testified that he did not think that he would be injured as a result of using the belt with the safety clasp wired open. Mealey stated in his deposition that he did not hear Alley say anything about the safety belts being a problem. He also did not notice that the clasp was wired open on either safety belt. He simply

picked up one and put it on. He stated that his safety belt was working normally
that day. He also stated that he had seen safety belts with the clasp wired open. Sometimes it was done because they were broken and sometimes it was done so a worker could work faster by not having to disengage the safety clasp every time he moved.

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Following argument on the Motion for Summary Judgment and submission of the exhibits, the trial court ruled in favor of AX finding: I think that the employer knew that the safety belts were unsafe, they knew that whether they tied them back or whether they were just broken, they knew that they were requiring men to climb with safety belts that were not properly functioning, and they knew that the whole point of the safety belt is so that if you fall you might wrench your back but you certainly are not going to sustain horrible injuries, and knowing that they put the guys up on the wall. The trial court granted the summary judgment, noting that although she did not
favor the alteration or removal of safety devices on work equipment, the actions in this case did not rise to the level of an intentional tort as defined by the

jurisprudence. It is from this summary judgment that Plaintiff appeals. On appeal Plaintiff argues that the trial court erred in granting the summary judgment in favor of AX. Plaintiff's primary argument is that there are material issues of fact that preclude summary judgment. Plaintiff argues that there was
disputed testimony as to whether Alley wired the clasp open. Further, the case

turns on Alley's knowledge and intent, which are not proper subjects for summary judgment.
AX argues, to the contrary, that there are no issues of fact that are material to the resolution of the legal question presented herein. Injuries to workers are covered by workers' compensation except in extreme cases of intentional action by the employer or co-employees for which the employer is responsible. Neither of

which is present here. Thus, the summary judgment, AX argues, was properly granted. The appellate standard of review for summary judgments is well settled. Our Supreme Court has recently summarized the law on summary judgment as

follows:

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Our review of a grant or denial of a motion for summary judgment is de novo. A motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(B). This article was amended in 1996 to provide that "summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the movant. 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. La. C.C.P. art. 966(C)(2). "In effect, the amendment 'levels the playing field' between the parties in two ways: first, the supporting documentation submitted by the parties should be scrutinized equally, and second, the overriding presumption in favor of trial on the merits is removed." Hardy v. Bowie, 98-2821, p. 5 (La.9/8/99), 744 So.2d 606 (citing Hayes v. Autin, 96-287 (La.App. 3rd Cir. 12/26/96), 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41). "The amendment to Art. 966 brings Louisiana's standard for summary judgment closely in line with the federal standard under Fed. Rule
Civ. Proc. 56(c) ..." Id.

Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257

(La. 2/29/00), 755 So.2d 226.
It is also well settled that claims for injury or death resulting from a workrelated accident are almost always recoverable only through workers'

compensation. La. R.S. 23:1032 provides, in part: (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages....

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B. 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 tort.

Section B, the intentional act exclusion, has been judicially interpreted numerous times. Two recent Supreme Court cases, Carrier v. Grey Wolf Drilline Company, 00-1335 (La.1/17/01), 776 So.2d 439 and Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208, explain that the
exclusion is narrow, and that the Louisiana legislature has rejected amendments to the section that would allow double compensation in cases where an employer violated a safety regulation, failed to provide a required safety device or, through a

supervisor, acted with gross negligence. In Reeves, the Supreme Court, citing language from Bazlev v. Tortorich, 397 So.2d 475, 481 (La.1981), stated that "the words 'intentional act' mean the same as 'intentional tort' in reference to civil liability." The Supreme Court went on to quote from Bazley, stating: We held that the meaning of "intent" in this context "is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct, or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. The Supreme Court then explained "substantially certain" as follows: Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation.
The "substantially certainty" element has been explained in this context as follows: The traditional definition is simply a way of relieving the claimant of the difficulty of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. The latter

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takes the case out of the realm of possibility or risk (which are negligence terms), and expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only "intended" to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire. Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers' Compensation Law & Practice,

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