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A worker attended a company party for a departing manager. The party, which involved a barbecue and a dunking booth, was held on the patio of the company's office building during working hours. The worker attended and ate some food and drank beer. Several co-workers were squirting each other with water guns during the party. The worker had to keep moving to avoid being squirted with water and to find a dry place to eat.

Eventually, she went back into the building to avoid being squirted with water. According to the worker, two co-workers were inside with water guns, and she backed up against a set of stairs. The co-workers began shooting her with water. She grabbed a co-worker to try to get him to stop. She slipped and fell on the wet floor, hitting her back, neck and head.

Three days later, she felt pain and went to a doctor to be treated for back, neck, and head injuries.

The worker received workers' compensation benefits. She also sued her co-workers, as well as her company, and its insurers. The trial court dismissed her claims, holding that her suit was barred by the exclusive remedy provision of the workers' compensation law.

Was the trial court correct in finding the worker's suit was barred?

A. Yes. The act causing her injury was not intentional.

B. No. The act was battery, and even if it was intended as nothing more than a practical joke, it was intentional.

C. No. The co-workers intended their contact to be offensive and slightly harmful.

How the court ruled: A.

The Louisiana Court of Appeal held that the worker's exclusive remedy was within the workers' compensation law. Bruno v. Bellsouth, No. 10-CA-413 (La. Ct. App. 01/11/11).

The worker argued that her injuries were the result of an intentional tort sufficient to support an exception to the exclusivity provision. The intentional act exception to workers' compensation exclusivity applies when the person who acts either: 1) consciously desires the physical result of his act, whatever the likelihood of the 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.

The court stated that none of the co-workers consciously desired to injure the worker when they shot her with the water guns. The court also said that there was no evidence that it was substantially certain that the worker would be injured when the co-workers squirted her with water guns.

B is incorrect. The court concluded that no intentional tort was committed when the co-workers squirted their water guns at the worker.

C is incorrect. The court stated that shooting a person with water, while annoying, was not intended to do harm or be even slightly painful.

CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum.

This feature is not intended as instructional material or to replace legal advice.

Read more at the WorkersComp Forum homepage.

March 10, 2011

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