Clark v. Div. Seven, Inc. - 99-3079 ( La. App. 4 Cir 12/27/00), 776 So. 2d 1262

Rule:

Under the worker's compensation scheme in Louisiana, employees have an exclusive remedy against employers for personal injuries arising out of and in the course of their employment. La. Rev. Stat. Ann. § 23:1032. However, there is an exception to the exclusive remedy of worker's compensation when the employee's injury was caused by an intentional act. La. Rev. Stat. Ann. § 23:1031(B). "Intentional act," as used in § 23:10131(B), means intentional tort. "Intent" has been defined by the Louisiana Supreme Court to mean that a defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Louisiana courts narrowly interpret the intentional act exception.

Facts:

On February 15, 1995, Gary Clark and his co-worker Robert Naquin were performing roofing work at a church located near Picayune, Mississippi for their employer, the defendant in this case. The foreman on this job was Sandroz Ray. On the date of the accident, there was light rain with occasionally heavy showers. Each time the rain became heavy, the three men came down off of the roof. According to the uncontroverted testimony of Clark and Naquin, Ray ordered them to return to their roofing work after each heavy shower lightened up. Both men protested to Ray several times that it was too dangerous to resume work on the slanted roof due to its wet and slippery condition following the rainfall. However, Ray told them to return to their roofing work after the rain stopped or they would be fired. After returning to the roof several times after heavy rain stopped, Naquin slipped on the roof and almost fell to the ground. Naquin's body from the chest down was off of the roof when he managed to grab on to a wooden block near the edge of the roof and avoid falling to the ground. The height of the church that was the site of the roofing job was described as almost that of a three story building. Following his narrowly averted fall, Naquin again complained to Ray of the danger of working on the wet, slippery roof. Ray reiterated to both men that they had the choice of returning to work or being fired. At that point, Naquin chose to be fired and left the work site. Clark remained at the site and continued his roofing work. Shortly after Naquin left the work site, Clark slipped on the wet roof and fell to the ground, sustaining serious injuries.

Clark filed a petition for damages against defendant, alleging that the actions of his employer were intentional so as to allow him to sue his employer in tort. In its answer, Division Seven asserted that Clark’s exclusive remedy as to defendant is under the Louisiana Workers' Compensation Act, and argued that Clark’s tort claim should be dismissed. Following trial on the liability issue, the trial judge rendered judgment in favor of Clark, finding that the actions of defendant's agent, Sandroz Ray, constituted an intentional act and that the intentional act of requiring him to work on a wet, slippery roof was the cause of his injuries.

Issue:

Did Clark’s injuries result from an intentional act under the exception to the exclusivity provision of the Louisiana Workers' Compensation Act?

Answer:

Yes.

Conclusion:

In the instant case, Divison Seven’s agent, Sandroz Ray, ignored repeated reports from Clark and Naquin that the slanted portion of the roof that they were working on was wet and slippery. The uncontroverted testimony was that Ray continued to demand that Clark and Naquin return to the their roofing duties after each hard rainfall or they would be fired. Ray even made this demand after Naquin slipped on the wet roof and almost fell to the ground, despite the fact that the weather conditions and the condition of the roof remained the same. When Ray ordered Clark to return to the wet, slippery roof shortly after Naquin slipped and narrowly avoided falling to the ground, the circumstances indicated that injury to the Clark was inevitable or substantially certain to occur. Thus, the trial court did not err in finding that the conduct of the defendant's agent constituted an intentional act that was the cause of Clark’s injuries.