The Louisiana Third Circuit Court of Appeal recently readdressed the Intentional Act Exception of the Workers’ Compensation Statute found in La. R.S. 23:1032(B).  The exception provides, in pertinent part;

“Nothing in this Chapter shall affect the liability of the Employer, or any officer, director, stockholder, partner, or employee of such employer or principle to fine or penalty under any other statute or the liability, civil or criminal, resulting from any intentional act.”

The matter before the Court involved an incident in which Plaintiff, a 26 year old teacher in Lafayette Parish, intervened in an altercation between two students. During the fight, Plaintiff, who was six weeks pregnant, was repeatedly punched in the stomach by one of the students. Following the incident, Plaintiff underwent a sonogram, which revealed some bleeding around Plaintiff’s cervix; however, the treating obstetrician noted that this type of bleeding was not abnormal.  Ultimately, Plaintiff gave birth to a little girl who was later found to have “congenital” damage to one of her kidneys. In bringing these proceedings, it was alleged that the child’s kidney damage, and Plaintiff’s own psychological injuries were the direct results of intentional actions by the Lafayette Parish School Board, Northside High School’s principal, and the student who committed the battery.

At the time of review, Plaintiff was receiving Workers’ Compensation Benefits from Defendant, LPSB, in addition to assault pay pursuant to La. R.S. 17:1201(C)(1)(a). Defendants maintained that these benefits were Plaintiff’s exclusive remedy, because Plaintiff was working within the course and scope of her duties as an employee of the LPSB at the time she was assaulted.

For Plaintiffs to recover in this action it must have been shown that the Defendants’ actions were ‘substantially certain’ to cause Plaintiffs’ injuries.  That is, it must be proven that the LPSB “(1) consciously desired the physical results of the particular conduct, or (2) had knowledge that the physical results were substantially certain to follow such conduct.” Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981).

In support of their position, Plaintiffs cited the LPSB’s knowledge of the student’s extensive disciplinary record and his re-admittance to the Northside High School. These actions, they argued, allowed the student to remain in the school and amounted to intentionally causing Plaintiffs’ injuries. The Court disagreed that the student’s record gave rise to a “substantial certainty” that Plaintiffs’ injuries would result from Defendants’ actions, and affirmed the lower court’s ruling.

Concurring with the trial court that “[t]here’s a big gap between…not following their procedures, negligence, even gross negligence, and intentional act” the Court declined to widen the currently narrow application of the intentional act exclusion. Citing Reeves v. Structural Preservation Systems, 731 So.2d 208, 212 (La. 1999), the Court reiterated that the application of the intentional act exclusion requires more than “believing that someone may, or even probably will eventually get hurt if a workplace practice is continued…” absent certainty “…an Employer’s negligence will fall within the range of acts that are covered by Workers Compensation.” Id.

Field v. Lafayette Parish School Board