Opinion
Civil Action 01-2723, Section "T" (1)
July 15, 2002
Before this Court is a Motion for Summary Judgment filed on behalf of the Defendant, Jazz Casino Company, L.L.C., pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motion came for hearing on March 27, 2002 with oral arguments. The Court, having reviewed the memoranda submitted by the parties, the exhibit, and the applicable law, is fully advised on the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
Randy Curtis was hired on September 21, 1999 as a pit manager by Harrah's New Orleans Casino (hereafter "Casino"), operated by the defendant, Jazz Casino Company, L.L.C. The plaintiff as the pit manager, oversaw several tables at the casino on the night of March 16, 2000. The events on that night form the subject of this case.
On March 16, 2000, Mike Ditka was playing craps at a table under the supervision of the plaintiff. At this table there was a die which was "cocked." When a die is cocked, it leans against an object preventing a proper landing. As a result, someone must make a call as to how the die would have landed had it not been cocked. On the night in question, the plaintiff made the call. His call was not well received by Mr. Ditka.
After making the call, Mr. Ditka proceeded to curse the plaintiff. This prompted the plaintiff to phone the surveillance team in order to prepare the videotape for a review by the shift manager, if that was necessary. According to the plaintiff, Mr. Ditka turned away from the plaintiff and began to walk away, but then Mr. Ditka turned back around. Mr. Ditka was approximately three feet from the plaintiff and he threw a lit cigar at the face of the plaintiff. The cigar hit the bottom lip of the plaintiff. Again, Mr. Ditka cursed the plaintiff. Finally, Mr. Ditka walked away. After the confrontation with Mr. Ditka, the plaintiff requested that Mr. Ditka be removed from the casino.
Later that morning, the plaintiff was advised to go home by his supervisor. It is the claim of the plaintiff that he was fired by the casino because of the incident with Mr. Ditka. A few days after the incident however, he received a termination slip saying that the plaintiff had voluntarily quit.
II. LAW AND ANALYSIS
A. The Law on Summary Judgment
The Federal Rules of Civil Procedure provide that a court should grant a motion for summary judgment only "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 any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-656 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), cert denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. The Court notes that substantive law determines the materiality of facts, and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Intentional Act
In order to recover in tort against a worker's employer . . . under the limited exclusion provided by La. R.S. 23:1032(B), the plaintiff must prove that his injuries resulted from an 'intentional act'. Reeves v. Structional Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208. The Louisiana Supreme Court has defined the requisite 'intentional act' needed to satisfy the limited exclusions provided under this statute as follows:
The meaning of "intent" 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 to that result.
Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981).
Louisiana Courts "narrowly interpret the intentional act loophole to the workers' compensation system." Guillory v. Dotmar Industries, Inc., 95 F.3d 1320, 1328 (5th Cir. 1996). If the actions of the casino were intentional, then it must be proven that the casino either consciously desired the injury to the plaintiff's lip or the casino must have been substantially certain that an injury would result from allowing Mr. Ditka to enter the casino.
"'Substantially certain' requires more than a reasonable probability that an accident or injury will occur, and 'certain' has been defined as 'inevitable' or 'incapable of failing'. Thus, even though a defendant's conduct is negligent or even grossly negligent, that conduct is not such as will allow the legal imputation of intent." Richardson v. Laroche Industries, Inc., 1998 U.S. Dist. Lexis 258, 86 (E.D.La. 1/7/98); quoting Hood v. South Louisiana Medical Center, 517 So.2d 469, 471 (La.App. 1st Cir. 1987). "Believing that someone may, or even probably will, eventually get hurt if a workplace practice continues, does not rise to the level of an intentional tort, but instead falls within the range of negligent acts that are covered by workers' compensation." Carrier v. Gray Wolf Drilling Co., 00-13335 (La. 01/17/01), 776 So.2d 439, 441; quoting Reeves, 731 So.2d at 212. "Louisiana courts hold that allegations of failure to provide a safe workplace, disregard of OSHA safety provisions and failure to correct unsafe working conditions are not sufficient to invoke the intentional act exception of La. R.S. 23:1032(B)." Landry v. Uniroyal Chemical Co., Inc., 653 So.2d 1199 (La.App. 1St Cir. 1995); Cortez v. Hooker Chemical and Plastics Corp., 402 So.2d 249 (La.App. 4th Cir. 1981). In other words, plaintiff has to prove that the employer consciously subjected him to a hazardous work environment making an injury to him nearly inevitable. Kent v. Jomac Products, 542 So.2d 99, 100 (La.App. 1st Cir. 1989). There must be a strong link between the conduct of the defendant and the injuries sustained by the plaintiff. Williams v. Gervais F. Favrot Co., 573 So.2d 533, 541 (La.App. 4th Cir.), writ denied, 576 So.2d 49 (La. 1991).
Taking the listed allegations in the original and amended petitions as true, the defendant could not have known that the injuries Mr. Curtis allegedly sustained were 'inevitable' after allowing Mr. Ditka onto the premises. The plaintiff failed to link the casino s action to the injury. As a result, the plaintiff did not prove that the action was 'substantially certain' to create the resulting injury. Therefore, no intentional act was committed by the casino.
Additionally, "[t]he intentional act exception of LSA-23:1032 was never intended to make employers liable in tort for the random, independent, intervening, intentional acts of unrelated, unknown third parties." Blevins v. Time Saver Stores, Inc., 99-383 (La.App. 5 Cir. 10/26/99), 746 So.2d 191), quoting, Adams v. Time Saver Stores, Inc., 615 So.2d 460, 464 (La.App. 4 Cir. 1993), writ denied, 617 So.2d 910 (La. 1993). Based on the evidence provided to this Court, the cigar throwing was a random, independent, intervening, and intentional action. It was an act committed by an unrelated, unknown third-party, Mr. Ditka. Therefore, the cigar incident is not an act that qualifies for the exception found in LSA-23:1032(B).
C. Strict Liability
The plaintiff asserts that strict liability is relevant to this matter, assumably pursuant to Louisiana Civil Code Article 2317. However, the casino's liability is not based on that article since the casino was the employer of the plaintiff at the time the injury occurred so LSA-R.S. 23:1032 applies to this case, which provides in part:
The rights and remedies herein granted to an employee or his dependent on account of an injury, . . . for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee.
Therefore, the "exclusive remedy rule also excludes the employer from the strict liability provisions of LSA-C.C. art. 2317." Reeder v. Laks Corp., 555 So.2d 7, 9 (La.App. 1 Cir. 1989). The plaintiff's claim of strict liability is dismissed.
III. CONCLUSION
For the forgoing reasons, the Court finds that partial Summary Judgment is proper for all the tort based claims. The Plaintiff has not alleged any actions that would rise to the level of an "intentional act".
Accordingly,
IT IS ORDERED that Defendant's Motion for Summary Judgment be, and the same is hereby GRANTED IN PART pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiff's tort based claims are hereby dismissed. The plaintiff's employment-related claims are not effected by this order.