Craig J. Danos VS Southern Fab, Inc. and Leonard Duet
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0172 CRAIG 1 DANOS VERSUS SOUTHERN FAB INC AND LEONARD DUET Judgment Rendered November Appealed from 2 2007 the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket Number 102 016 Honorable Walter 1 Lanier III Joseph J Weigand J1 Houma LA Judge Counsel for Plaintiff Appellant Craig J Danos William S Watkins Counsel for Houma LA Defendants Appellees Southern Fab Inc and Leonard Duet BEFORE WHIPPLE GUIDRY AND HUGHES JJ GUIDRY J The Fab Inc appellant Craig as his pounds collectively his back while injured and scope of his course of Duet his claim Workers moving supervisor and part In his Although employment he alleged that based Act See La R S 23 1032B substantially instead of using After men certain Duet s knowledge that the OSHA and knowledge s to act weighing forced are follow of are to move a crane was an him to intentional act on injury the intentional a Specifically heavy objects back Danos alleged the result that is injuries manually and the move despite this work baskets of harm motion for summary judgment would be unable to meet his burden in act application of the Louisiana generally denying the claims contained in and excepting petition the defendants filed in the safety rules and from personal inevitably instructing of several hundred Danos sustained his Compensation owner petition Danos alleged that work baskets some excluded from the exclusive experience that if that his as was that Duet act petition for damages against Southern defendants the instruction of Duet at a employer and Leonard Duet Southern Fab Inc he J Danos filed asserting proving that Duet committed exempted Danos suit from the exclusive application an to Danos that Danos intentional of the Workers Compensation Act On a motion for summary judgment the burden of proof is the moving party will not bear the burden of proof at trial burden on a support for defense to motion for summary one or more is Thereafter if the adverse party fails no to point out the mover If the matter that party s an absence of factual essential elements of the adverse pmiy s claim action establish that he will be able to there is judgment on on satisfy his to produce factual support sufficient evidentiary genuine issue of material fact and the 2 or burden of mover proof at is entitled trial to summary judgment La C C P art App 1st Cir 3 28 03 In 966C 2 Robles ExxonMobile 02 0854 p 4 support of their motion for summary judgment the defendants submitted point to cause Danos harm support his allegation of Danos however Particularly protested Duet s instructions incapable deposition testimony of Duet the lack of factual support for Danos out intentionally or was no claim that Duet presented evidence no instructed as Nor acted evidence Danos physical capabilities Rather defendants in the form of excerpts from Danos such an assertion was was physically there any evidence him how to the evidence deposition testimony undermines on perform the chore and then instructed Danos to depositions there is Duet s a allegations or answers or to interrogatories genuine issue for trial pleading must set See La C C P art co weld to but his response forth show may not rest by affidavits specific facts showing that 967B While the portion of deposition testimony that Danos quotes in his memorandum in opposition to the motion for summary requiring a person to lift judgment might or In his memorandum in Danos denials of his to have another nonmoving party who will bear the burden of proof at trial the mere problems the labor of moving the first work basket with Danos worker assist him in moving the remaining work baskets he needed The was presented by the Danos testified that Duet who suffered from back physically performed to presented that Danos otherwise informed Duet that he the work performing there and Danos presented by Danos indicating that Duet should have known that the work beyond La 844 So 2d 339 341 evidence in the form of excerpts from the to v quoted the Q Okay push opposition following exchange more more than he should to the defendants from Duet s By Duet Yes 3 would generally that substantially motion for summary lead judgment deposition In your view as an employer if men are than they should do you believe that would injury A prove that Duet knew required to lift or push substantially lead to an to an such injury Danos instructing knowledge to lift or does push produce evidence proving that work he instructed Danos to granting of summary Therefore Courts of are we assessed more affirm the trial equate was to proof that Duet knew he than Danos should Duet knew perform judgment Appeal Rule not or was Danos substantially failure 2 16 2A 4 to certain that the beyond Danos physical ability made the in favor of the defendants proper in this court s was case judgment in accordance with Uniform Rules and against Craig J Danos AFFIRMED 4 6 All costs associated with this appeal
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