Forklift Operator from Lena, Louisiana, Wins Workplace Injury Appeal

Injury can occur on the job even when you least expect it. Kenneth Dale Kelly, a forklift operator for Lena, Louisiana, shipping company Boise Cascade, was injured on the job in August 2007. Unlike most workplace injuries that occur due to accidents, Kelly was intentionally injured by a coworker. Kelly was sitting at his desk with his feet propped up when an altercation over a work assignment with Dwayne Myers began. Despite Kelly’s pleas to be left alone, Myers approached Kelly, picked him up out of the chair, and threw him to the ground. Kelly, whose history of back injuries was well-known by all coworkers, including Myers, landed on his back and immediately began experiencing severe pain and discomfort. Boise conducted an internal investigation, and Kelly’s story was corroborated by several coworkers.

Kelly then filed suit against Myers, Boise, and Boise’s liability insurer, and the 5 day trial began on December 13, 2010. During trial, Kelly argued that Myers’s conduct was intentional and that Boise was therefore liable under the doctrine of vicarious liability. Kelly moved for a directed verdict, stating that reasonable minds could reach no other conclusion than that Myers had committed battery (an intentional tort), that Myers had committed this tort within the course and scope of his employment, that Kelly was not at fault for any part of the injury, and that Kelly was injured due to Myers’s conduct. The trial court confirmed the first two issues, and the jury, finding that Kelly was indeed injured but was 30% responsible, assessed $994,940.00 in total damages to Kelly and his wife. The trial court then increased Kelly’s damages for past medical expenses and past lost wages and granted Boise credit for previously paid workers comp benefits.

The defendants appealed, arguing, among other things, that: 1.) Boise should not be liable under respondeat superior for an intentional tort committed by Myers, 2.) the trial court incorrectly applied the Lebrane test, and 3.) the trial court erred in directing a verdict for battery.

Under the doctrines of vicarious liability and respondeat superior recognized in Louisiana, an employer is vicariously liable for the torts committed by its employee if the employee was acting within the scope of his/her employment. These torts can include negligence, such as a delivery truck accident or slip and fall, and intentional torts, such as pushing a coworker during a fight over invoices.

According to Lebrane v. Lewis, a Louisiana Supreme Court case, in respondeat superior intentional tort cases, courts must consider 1.) whether the action was rooted in employment, 2.) whether the action was reasonably related to the performance of employment duties, 3.) whether the act occurred at the place of employment, and 4.) whether the act occurred during employment hours. Here, the appellate court found ample evidence that an intentional tort – battery – had occurred when Myers intentionally grabbed Kelly despite Kelly’s objections. The appellate court also found that the act was both rooted in employment and reasonably related to the performance of employment duties. Kelly and Myers were arguing over a workplace document, not a personal matter. In addition, the act clearly happened on premises during work hours; Myers and Kelly were at the factory in Kelly’s office during main business hours. Because the elements of the Lebrane test were satisfied, Myers’s liability was imputed onto his employer, Boise, and the appellate court affirmed the trial court’s decisions and damages.

If you have been injured on the job, whether by accident or by the intentional misconduct of a fellow employee, contact the Berniard Law Firm. Providing the best experts in employment and workers compensation law, our law firm is fully capable of meeting your litigation needs.

Call the Berniard Law Firm Toll-Free at 1-866-574-8005, and an attorney specializing in employment will be more than happy to help you get the outcome you deserve.