Opinion
Civil Action No: 00-3632.
May 8, 2001.
ORDER
Following the Court's partial grant of defendants' Motion to Dismiss (Rec. Doc. 3), as well as the filing of an amended complaint adding claims against Patrick Musacchia's supervisor, Richard Pittman, the Court ordered plaintiff to provide a more definite statement of the claims alleged against Richard Pittman within 15 days of entry of its order, or by April 5, 2001. Following the filing of plaintiff's more definite statement, defendants filed a Reply in which they renewed the prior motion to dismiss. Rec. Doc. 15. For the reasons that follow, the Court finds that defendants' renewed Motion to Dismiss should be granted, and the remaining claims against Richard Pittman and Sanderson Farms, Inc. should be dismissed.
BACKGROUND
The facts surrounding this matter have been set forth in detail in the Court's prior minute entry, and will not be restated here. See, Rec. Doc. 12. In the late-filed "More Definite Statement," plaintiff makes various allegations to the effect that when Pittman ordered Patrick Musacchia to the roof in connection with repairs being made to the plant's ice auger, Pittman knew that injury to Musacchia was substantially certain to occur. In support of this contention, plaintiff alleges that Pittman knew of previous injuries and safety defects in the ice auger, knew that the power to the ice auger was engaged when Patrick Musacchia was sent up and that the ice auger would begin working with Patrick Musacchia standing in close proximity to the blades, that Pittman refused to disconnect power to the ice auger, and that the location of the ice auger on the roof made it impossible for medical attention to be provided near the ice auger.
While due on April 5, 2001, plaintiff did not file the "More Definite Statement" until April 10, 2001.
Defendants have filed the affidavit of Richard Pittman in which he states, inter alia, that he hired Patrick Musacchia, liked him, and did not desire for him to sustain an accident or injury.
DISCUSSION
With respect to defendant Richard Pittman, the issue before the Court in this fraudulent joinder claim is whether there is any possibility that plaintiff can establish a cause of action against Pittman, Patrick Musacchia's co-employee, under the "intentional act" exception to the Louisiana Workers' Compensation Law, La.R.S. 23:1032B.
The removing defendants bear the burden of proving fraudulent joinder, and courts must consider all factual allegations in the light most favorable to the plaintiff, and resolve all contested issues of substantive fact in favor of the plaintiff. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). However, in ruling on a question of fraudulent joinder, courts may "pierce the pleadings" and employ a summary judgment-type procedure. Carriere v. Sears, Roebuck Co., 893 F.2d 98, 100 (5th Cir. 1990).
In plaintiff's "More Definite Statement," she attempts to allege intentional conduct by Pittman from which injury was substantially certain to follow. According to plaintiff, Pittman sent her husband to the roof knowing of prior accidents involving the ice auger, knowing the ice auger would re-start while Patrick Musacchia was standing nearby, and knowing that the location of the ice auger made it difficult for medical attention to be provided. Based on these allegations, she asks the Court to conclude that it was a near certainty that her husband would suffer the injuries that resulted in his death.
The Intentional Act Exception
As has previously been set forth by this Court, because Patrick Musacchia was an employee of defendant Sanderson Farms, Inc., plaintiff's exclusive remedy against Sanderson Farms or other Sanderson Farms employees is through Workers' Compensation, unless his injury resulted from an "intentional act." Reeves v. Structural Pres. Sys., 731 So.2d 208, 210 (La. 1999). The Louisiana Supreme Court has interpreted the phrase "intentional act" narrowly and held 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 as to that result." Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981); Reeves, 731 So.2d at 211. While plaintiff has alleged certain intentional conduct on the part of Pittman, those allegations do not lead inexorably to the conclusion that Patrick Musacchia was substantially certain to injure himself in the way that he did. "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." Reeves, 731 So.2d 212. Substantial certainty requires more than a reasonable probability of injury resulting; rather it must be inevitable, or incapable of failure.Reeves, 731 So.2d at 212-13; see also, Keller v. Evans Cooperage, Inc., 771 So.2d 188, 192 (La.Ct.App. 5th Cir. 2000); Labbe v. Chemical Waste Mgmt., Inc., 756 So.2d 613, 616-17 (La.Ct.App. 3 Cir. 2000). Mere knowledge of a dangerous machine with a high probability of causing an injury will not meet the substantial certainty requirement. Id. Under this strict standard, the facts alleged do not support a cause of action against Pittman under the intentional act exception, because even assuming everything plaintiff alleges is true, it was not inevitable that Patrick Musacchia would fall onto the auger and suffer the injuries that caused his death. To the contrary, what occurred was a tragic and terrible accident. Moreover, Pittman's affidavit reflects that he did not desire for Patrick Musacchia to be harmed, and plaintiff has failed to make any countervailing argument on this point. At worst, assuming the truth of all of plaintiff's allegations, Pittman's actions amount to gross negligence. However, the intentional act exception to the Louisiana Workers' Compensation statute was not designed for wanton, reckless, careless, or even grossly negligent acts, but only for intentional ones.Keller, 771 So.2d at 192. Thus, this Court finds as a matter of law that Richard Pittman was fraudulently joined because Musacchia cannot maintain an action against Pittman through the intentional act exception of the Louisiana Workers' Compensation Act.
Dismissal of Sanderson Farms, Inc .
With respect to Sanderson Farms, Inc., plaintiff alleges that Sanderson Farms allowed improper equipment to remain in operation; failed to provide a safe work environment for its employees; failed to properly inspect its equipment; failed to provide adequate maintenance to its equipment; failed to install and/or provide safety warnings along side or adjacent to the accident site; failed to reasonably or regularly to inspect and/or test its equipment; failed in constructing and failed to repair, maintain or upgrade the equipment; negligently constructed and/or failed to reasonably inspect, maintain, upgrade, reconstruct and/or repair the equipment; and failed to relocate or remove the equipment. Supp. Amending Complaint, ¶ 35(a)-(i). Plaintiff also alleges that Sanderson Farms, Inc. is liable under the doctrine of strict liability or negligence under articles 2315, 2317, or 2320 of the Louisiana Civil Code. Id., ¶ 35(j). Plaintiff further alleges that Sanderson Farms, Inc. failed to set out reasonable, proper and/or adequate warning signs or devices; failed to provide and/or install covers and/or guardrails; intentionally altered the ice auger; and removed safety devices from the ice auger. Id., un-numbered paragraph at 9-10. With respect to all of the allegations, plaintiff concedes the acts took place while Patrick Musacchia was in the course and scope of his employment at Sanderson Farms, Inc. Id., ¶ 23.
Because all of the allegations against Sanderson Farms, Inc. sound in negligence, and the complained of conduct occurred during the course and scope of Patrick Musacchia's employment, Sanderson Farms, Inc. is also entitled to immunity from suit under Louisiana's workers' compensation laws, unless the intentional tort exception applies. However, "failure to provide a safe place to work, deficiently designed machinery and disregard of OSHA safety provisions, failure to correct unsafe working conditions, and failure to provide specifically requested safety equipment" are examples of allegations not sufficient to invoke the intentional act exception absent proof of defendant's desire to harm the plaintiff or knowledge that such conduct would "nearly inevitably" cause injury to the plaintiff. Labbe, 756 So.2d at 617. Thus, the Court finds that plaintiff has failed to make the allegations necessary to support a claim against Sanderson Farms, Inc. based on the intentional act exception to Louisiana's workers' compensation laws, and Sanderson Farms, Inc. must also be dismissed. Accordingly;
IT IS ORDERED that plaintiff's claims against defendants Richard Pittman and Sanderson Farms, Inc. should be and are hereby DISMISSED.