KEATY, Judge.
This appeal stems from an incident between co-workers at their place of employment in which one of the workers was severely injured. For the following reasons, we hold that the trial court did not err in granting a motion for directed verdict in favor of the injured employee based
Kenneth Dale Kelly was a forklift operator employed by Boise Cascade, L.L.C. (Boise) at its engineered wood products facility in Lena, Louisiana. On August 28, 2007, Kelly was sitting at a desk in the Boise shipping office with his feet propped up on a drawer when his co-worker, Dwayne Myers, moved toward him and, despite his protestations, put his hands on Kelly. Thereafter, the chair toppled over and Kelly fell to the floor injuring his back, which had previously been operated on in 2000 and 2002. As a result of his injuries, Kelly
The matter proceeded to a five-day jury trial on December 13, 2010. After plaintiffs rested their case, the defendants moved for a directed verdict, contending that plaintiffs failed to prove by a preponderance of the evidence that Myers' actions amounted to an intentional act or that Myers' actions occurred during the course and scope of his employment with Boise. The trial court denied the defendants' motion on the basis that reasonable minds could differ regarding whether Myers acted intentionally and whether Boise should be held vicariously liable for Myers' actions. The defendants then presented their defense to Kelly's claims, after which they rested their case and re-urged their motion for directed verdict. The trial court denied the defendants motion for the same reasons that it had rejected their original motion.
Thereafter, plaintiffs moved for a directed verdict arguing that reasonable minds could not reach any conclusion other than that plaintiffs had proven that: 1) Myers committed the intentional tort of battery upon Kelly; 2) the battery occurred within the course and scope of Myers' employment with Boise; 3) Kelly was not guilty of comparative fault for having caused or contributed to the accident, and 4) Kelly was injured as a result of Myer's conduct. The trial court granted plaintiffs' motion as regarding the first two issues and the remaining issues were submitted to the jury.
The jury determined that Kelly was injured in the August 28, 2007 accident and that Kelly was at fault in causing his own injuries. Fault was apportioned 30% to Kelly and 70% to Myers. The jury assessed Kelly's total damages at $944,940.00 and his wife's loss of consortium damages at $50,000.00. In a written judgment dated March 1, 2011, judgment was rendered in favor of plaintiffs and against Myers, Boise, and Old Republic, in solido, for the amounts awarded by the jury, plus interest and costs.
Boise, Old Republic, and Myers now appeal,
Boise's motion for suspensive appeal was filed and granted on May 19, 2011. Boise filed its appeal bond on May 26, 2011. Plaintiffs filed an answer to appeal in the trial court on June 2, 2011. The record was lodged in this court on September 12, 2011. Boise filed its appellant brief in this court on October 14, 2011. Plaintiffs filed a pleading entitled in part, "Original Brief of Appellees Kenneth Dale Kelly and Jackie Denise Kelly in Answer to Appeal Filed by Boise" in this court on November 14, 2011. In response, Boise filed a motion to strike plaintiffs' answer to appeal. Thereafter, plaintiffs filed a memorandum in opposition to Boise's motion to strike, along with a motion to supplement the record with the answer to appeal that they had previously filed in the trial court. Boise opposed plaintiffs' motion to supplement. We referred both motions to the merits.
In its motion to strike, Boise relies on this court's holding in Smoot v. Hernandez,
Id. at 361-62. (Footnote omitted.)
We find no meaningful distinction between the instant matter and Smoot, we conclude that plaintiffs' answer to appeal was not timely filed, and we will not consider their request for modification of the trial court's judgment.
We will address defendants' first five assignments of error together because they are interrelated. As previously mentioned, plaintiffs moved for a directed verdict under La.Code Civ.P. art. 1810 at the close of the defendants' case. The trial court granted the motion in part, finding that reasonable minds could not reach any conclusion other than that Myers committed an intentional battery on Kelly within the course and scope of their employment with Boise.
Gibson v. Digiglia, 07-1028, p. 3 (La.App. 3 Cir. 3/5/08), 980 So.2d 739, 742.
The substantive law applicable to plaintiffs' claims involves the interplay of three areas of law: tort, vicarious liability, and workers' compensation. In Caudle v. Betts, 512 So.2d 389, 390-91 (La.1987) (citations omitted) (footnote omitted), the supreme court explained:
In Reeves v. Structural Preservation Systems, 97-1465 (La.App. 3 Cir. 6/3/98), 716 So.2d 58, reversed on other grounds, 98-1795 (La.3/12/99), 731 So.2d 208, this court further interpreted Bazley, noting:
In Baumeister v. Plunkett, 95-2270, pp. 3-4 (La.5/21/96), 673 So.2d 994, 996-97, the supreme court stated:
Both Kelly and Myers held the position of Production Tech V (PTV) forklift operator at Boise. Their chief responsibilities were transporting wood in the facility throughout its processing and completing paperwork concerning Boise's inventory. The forklifts contained CB radios which the operators used to communicate with each other when in their forklifts. Walkie-talkie's were available for speaking to other Boise employees within the plant. The incident in question occurred on the morning of August 28, 2007, in Boise's shipping office, where Kelly had gone after being notified that his forklift was malfunctioning. He was at a desk checking inventory on a computer screen, leaning back in a rolling chair with his feet propped up about six inches above the floor on one of the desk's bottom left drawers. Two other PTVs, Tommy McCarty and Clay Barron, were also in the shipping office, and McCarty had called Myers and asked him to bring a cut sheet
Kelly testified that when Myers arrived at the office, he told Kelly to call Danny, another employee, to come help to complete the cut sheet. When Kelly refused, Myers' expression changed and Kelly sensed that the situation was about to "get hairy." Myers then asked Kelly if he was telling him "no," to which Kelly replied in the affirmative. At that point, Myers began to approach Kelly, which caused Kelly to take his foot off the desk drawer and sit up on the front of his chair. Kelly then told Myers, "Dwayne, don't. Don't mess with me, Dwayne," but Myers continued toward him. According to Kelly, Myers grabbed his right arm and reached up under his calf, picked him up out of the chair, and threw him to the concrete floor. Afterwards, Myers just stood there looking at him on the floor before leaving the office. Kelly remained on the floor for a few minutes because of the severe pain he
Myers told a different story. He testified that he asked Kelly to call another employee because there was a CB radio close to him. When Kelly refused to offer him any help, Myers reached across Kelly to retrieve the CB radio from the desk in front of Kelly and, as he did so, he may have lightly brushed against Kelly. Kelly then "went all the way back" and Myers grabbed his legs "to prevent the chair from collapsing all the way over." Kelly ended up on the ground, and, according to Myers, they all "kind-of laughed." Myers asked Kelly if he was okay, and when Kelly did not answer, Myers realized that it was serious and he left the office because he was "behind and ... in a big rush." Myers testified that it was common knowledge in the shipping department that Kelly suffered from back problems; however, he denied knowing that Kelly had two prior back surgeries.
After the incident, an investigation was conducted by Barry Robinson, the superintendent of Boise's shipping office. Roberts, the supervisor of the shipping department, was present during most of that investigation. According to Robinson, the communications between Myers and Kelly on the morning of the incident were work related and involved Boise business. In his opinion, the incident went beyond horseplay. Robinson testified that he questioned Kelly, Myers, McCarty, and Barron about the incident. McCarty and Barron confirmed that as Myers approached Kelly, Kelly told Myers not to touch or "mess with" him, which, in Robinson's opinion, added credence to the version of events that Kelly relayed to him. The email report that Robinson created regarding the incident, dated August 30, 2007, was submitted at trial as Joint Exhibit 2. In the report, Robinson noted that Kelly told him that Myers had reached down and lifted up his leg off the floor while reaching for his chest, which caused him to lean back in the chair until it flipped with Kelly in it. Kelly told Robinson that Myers was joking around, as he often did. According to the report, Myers demonstrated on Robinson how the accident had occurred, grabbing his leg and pushing on his chest. Myers explained that as the chair began to fall over backwards, he attempted to slow it down and keep it from hitting the floor hard. After his investigation, Robinson determined that Myers' actions were in violation of Boise's policy regarding unauthorized touching. Robinson drafted a Last Chance Agreement (LCA) which Myers signed on September 4, 2007. The LCA noted that Myers had been suspended during Boise's investigation of the matter because of his having been counseled by management in the past about similar issues. According to the LCA, Myers' "poor judgment was a safety violation and ... caused an injury to a fellow employee," and Myers admitted that "the performance incidents did occur." The LCA provided that in lieu of being terminated, Myers was being given one last chance to continue his employment with Boise.
Within a day or so of the accident, Roberts completed a Supervisor's Incident Investigation report, which was submitted at trial as Joint Exhibit 1. The report summarized the incident as follows: "Ken was sitting in office chair at desk when another employee grabbed him by the leg & shoulder — chair turned over backwards...." The report stated that "horseplay on the part of one employee" was the root cause of the incident. An attachment to the report signed by Robinson stated that he and Roberts had inspected the rolling desk chair from the incident. The chair was several years old and reclined when no one
In granting plaintiffs' motion for directed verdict, the trial court noted that the jurisprudence indicated that directed verdicts should only be issued sparingly and that the standard for granting a directed verdict was very high. Nevertheless, after listening to all of the evidence, the trial court determined that "even under Mr. Myer's description of what happened, there was an intentional touching" to which Kelly was objecting and which amounted to a battery regardless of whether Myers intended to injure Kelly. The trial court explained that it was Myers' intent to put his hands on Kelly, despite Kelly's telling him not to, that put Myers' actions "out of the realm of any type of negligence." With regard to course and scope, the trial court concluded that there was no question but that the incident occurred in the workplace, during working hours, and that the precipitating event that caused the incident, i.e., Myers' attempt to get help with completing the cut sheet, was clearly employment rooted.
When Myers approached him in the shipping office, Kelly was reclining in a rolling chair with his feet elevated. It was common knowledge in the shipping department that Kelly suffered from back problems. Thus, as explained by the trial court, it is irrelevant whether Myers touched Kelly softly or roughly, because the evidence overwhelming indicated that Myers touched Kelly in an offensive or harmful manner after being told not to, and, that as a result of that unauthorized touching, Kelly fell over in the chair rein-juring his back. Myers consciously desired to place his hands on Kelly against his will when he came at Kelly despite his protestation that he not be touched. The fact that Myers may not have intended to injure Kelly is of no moment in light of the fact that he intended to inflict a battery, however slight, upon Kelly, whom he knew had back problems and under circumstances that made it likely that Kelly could fall and be injured. Myers' actions against Kelly are no less of an intentional tort simply because the two men were co-workers. We conclude that no reasonable trier of fact could decide that Myers did not commit an intentional tort against Kelly.
The evidence also overwhelmingly indicates that the incident arose as a result of Myers' attempt to get the cut sheet completed and that the incident was "reasonably incidental to the performance of [Myers'] duties." Baumeister, 673 So.2d at 1000. On the other hand, absolutely no evidence was offered that points to the conclusion that Myers' actions were motivated by any "purely personal considerations entirely extraneous to [Boise's] interest." Id. at 997. By all accounts, before this incident occurred Myers and Kelly considered each other a friend, and there was not a hint of animosity between the two of them.
The defendants contend that they should not be liable to Kelly in tort because the battery did not benefit Boise's business and because Myers' actions violated Boise's policy against unauthorized or offensive touching. We disagree. In Benoit v. Capitol Manufacturing Co., 617 So.2d 477 (La.1993), an employee of the defendant was injured when he got into a fight with a co-employee at work over whether the rear door to their work area should be opened or closed. In finding the employer liable to the injured employee for the battery to the plaintiff by his fellow employee, the supreme court noted that while the battery upon plaintiff did not benefit the defendant employer, neither did the supervisor's
In addition, this court recently noted that:
Edmond v. Pathfinder Energy Servs., Inc., 11-151, pp. 9-10 (La.App. 3 Cir. 9/21/11), 73 So.3d 424, 429-30, writ denied, 11-2234 (La.12/16/11), 76 So.2d 1204. Here too, the fact that Boise corporate policy prohibited harassment and other unauthorized touching leads us to the inference that the possibility that its employees will engage in on-the-job horseplay "is a risk of harm fairly attributable to [Boise's] business." Id. We conclude that no reasonable trier of fact could find that Myers' actions did not occur in the course and scope of his employment with Boise.
We further conclude that the trial court properly applied the LeBrane test in determining whether Boise should be held liable for Myers' tortious actions. See LeBrane v. Lewis, 292 So.2d 216 (La.1974). Moreover, we find that the trial court did not apply undue weight to the first LeBrane factor because here, all of the LeBrane factors pointed in favor of holding Boise vicariously liable for Myers' actions against Kelly because the battery was "primarily employment-rooted" and "reasonably incidental to the performance of [Myers'] duties," and because the battery "occurred on the employment premises and during the hours of employment." Id. at 218.
After considering the testimony and evidence in light of the substantive law applicable to this matter, we are convinced that no reasonable trier of fact could arrive at a verdict other than one finding that Myers committed an intentional act upon Kelly within the course and scope of their employment with Boise. Thus, the trial court did not err in directing a verdict in favor of plaintiffs. Conversely, the trial court did not err in failing to direct a verdict in Boise's favor as the evidence simply did not support Boise's claims that Myers did not act intentionally or that it should not be held vicariously liable for his actions. For the foregoing reasons, defendants' first five assignments of error lack merit.
The defendants contend that the trial court erred in failing to grant them an offset against the tort award for any future workers' compensation payments that it will pay to Kelly, thus guaranteeing that he will receive a double recovery. They claim that their position is mandated by the binding Louisiana Supreme Court authority espoused in Gagnard v. Baldridge, 612 So.2d 732 (La.1993).
Plaintiffs point out that they have only filed suit against the defendants for tort damages. They have not sued Boise for workers' compensation benefits and no judgment has been entered ordering Boise to pay future disability benefits or medical expenses. As a result, plaintiffs contend that there is no workers' compensation judgment which can be offset or credited against the tort award made in this case. Finally, plaintiffs submit that "this court has already considered and rejected an argument similar to that" which Boise
Here, in rejecting the defendants' claim that they were due an offset, the trial court observed, "[y]ou can't satisfy a fixed obligation, or a liquidated amount, with a promise of an expectation of a performance in the future, that's not how a set-off works." In so finding, the trial court noted that to allow the defendants to satisfy the tort judgment "over the next 20 years" when plaintiffs were awarded a money judgment that was immediately due and payable would "totally negate[] the time value money aspect" of that judgment. The trial court also anticipated that problems could occur if defendants were awarded an offset and Kelly were to die before receiving the full value of the tort judgment awarded by the jury in this case.
Based on our prior holding in Reeves, 716 So.2d 58, we are of the opinion that the trial court did not err in refusing to grant the defendants an offset against the tort award for any future workers' compensation payments that it will pay to Kelly in the future. As noted by the trial court, the defendants can institute a proceeding in the workers' compensation arena to prevent plaintiffs from receiving any double recovery. The defendants' sixth assignment of error lacks merit.
For the foregoing reasons, the judgment of the trial court is affirmed in its entirety. Costs of this appeal are assessed to the defendants.