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Keller v. Odin Management8/19/1998
hat the store exerted control over the corral area and the lease specifically provided indemnity to the landlord for accidents related to the use of the corral. Here, the lessee has not exercised such control over the sidewalk area.
In May v. Acadiana Regional Airport, supra, the airport sought indemnity from the lessee for injuries to an individual who fell on a stairway after repairing equipment in the leased premises. The court stated that liability exposure under the lease depends on the maintenance and control of the location where the injury is sustained. The court found that lessee did not have control of the stairway and thus could not be liable under the lease for injuries occurring outside of the leased premises.
Similarly in the present case, plaintiff was injured on the sidewalk, which was admittedly subject to the maintenance and control of the lessor. Odin failed to establish that H & R Block was liable for indemnity on the basis of the lease, because plaintiff was not injured on the leased premises. The evidence presented does not support a finding that Odin is entitled to judgment as a matter of law. Therefore, the district court erred in granting Odin's motion, and the summary judgment in favor of Odin and against H & R Block is reversed. This portion of the case is also remanded for further proceedings.
Employer's Liability in Tort
The plaintiff contends the trial court erred in granting H & R Block's motion for summary judgment, dismissing the tort claim against her employer. Generally, worker's compensation is the exclusive remedy of an employee who is injured in the course and scope of her employment. LSA-R.S. 23:1032. However, LSA-R.S. 23:1032 (B) provides an exception to this tort immunity when the employee's injury is the result of an intentional act. An act is considered intentional whenever the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow. Substantial certainty has been interpreted to mean that the injury is inevitable or virtually sure to occur. Snow v. Lenox Internt'l, 27,533 (La. App. 2d Cir. 11/1/95), 662 So.2d 818.
Here, the plaintiff does not contend that her employer intentionally caused her injuries, but that given H & R Block's knowledge of the hazardous weather conditions, her injury was certain to follow. The evidence presented at the hearing on summary judgment shows that plaintiff was acting in the course and scope of her employment when she was injured and that H & R Block did not demand that she report to work on the evening of the accident.
The evidence submitted in this case fails to demonstrate that plaintiff's injury was substantially certain to occur. Considering the parties' arguments and filings presented in regard to the motion, the district court correctly concluded that plaintiff's sole remedy was a claim for workers' compensation benefits. Therefore, the summary judgment granted in favor of H & R Block and against the plaintiff is affirmed. The assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, that part of the district court's judgment granting Odin's motion for involuntary dismissal of plaintiff's claims is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion, including completion of the trial. The district court's summary judgment in favor of H & R Block and against the plaintiff is affirmed.
In the consolidated case, we reverse the summary judgment granted in favor of Odin and against its co-defendant, H & R Block. The case is remanded to the district court
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