MESSILIEN GEORGES ON BEHALF OF HIS MINOR CHILD MERSENDY GEORGES v. SOUTHEAST RESTAURANT GROUP TB LLC TACO BELL AND XYZ INSURANCE COMPANY (2025)

Plaintiff/appellant, Messilien Georges, on behalf of his minor child, Mersendy Marfranc Georges, appeals a judgment granting summary judgment in favor of Southeast Restaurant Group-TB, LLC, d/b/a Taco Bell (“Taco Bell”), dismissing plaintiff's claims with prejudice.¹ The trial court found that Mersendy's exclusive remedy is workers’ compensation because plaintiff did not establish that the workplace injury resulted from an intentional act. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 14, 2022, sixteen-year-old Mersendy Marfranc Georges was working as a “food champion” at a Taco Bell in Gretna, Louisiana. His duties included food preparation. The shift manager, Janae Tedford, instructed Mersendy to retrieve food from a “rethermalizer,” an appliance that uses hot water (approximately 195 degrees Fahrenheit) to heat proteins. Mersendy wore leather gloves instead of using tongs, as was allegedly customary, and sustained serious burns to his hand when water entered his glove.

The petition, filed July 14, 2023, alleged that Ms. Tedford's conduct amounted to gross negligence and was tantamount to an “intentional act” because a minor was instructed to perform a dangerous task. Taco Bell moved for summary judgment, contending that there was no evidence of an intentional act causing injury. The hearing occurred on April 23, 2025. The court, finding no evidence of an intentional act, granted the motion and dismissed plaintiff's claims with prejudice. A written judgment was issued on May 2, 2025. Plaintiff appealed.

LAW AND ANALYSIS

A motion for summary judgment is proper if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The moving party must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The nonmoving party who bears the burden of proof at trial on the issue that is before the court on the motion for summary judgment must then produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). Appellate courts review summary judgments de novo. Migliore v. Ambassador P'ship, LLC, 22-599 (La. App. 5 Cir. 12/1/23), 376 So.3d 1178, 1182.

The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Bach v. Bd. of River Port Pilot Comm'rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355, 362. The substantive law applicable to this case is the Louisiana Workers’ Compensation Law, La. R.S. 23:1020.1, et seq. The motion for summary judgment is a proper procedural device to penetrate the plaintiff's allegations that the injuries resulted from an intentional tort. Zamora v. Equilon Enters., LLC, 24-507 (La. App. 5 Cir. 5/14/25), 415 So.3d 365, 368, writ denied, 25-00731 (La. 10/1/25), citing Snow v. Lenox Int'l, 27,533 (La. App. 2 Cir. 11/1/95), 662 So.2d 818, 820.

The Louisiana Workers’ Compensation Law provides for compensation if an employee “receives personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031. As a general rule, the rights and remedies granted to an employee under the Louisiana Workers’ Compensation Law are “exclusive of all other rights, remedies, and claims for damages ․ against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.” La. R.S. 23:1032(A)(1)(a). Employees who are minors are included in the exclusivity provision. Griggs v. Bounce N’ Around Inflatables, L.L.C., 18-0726 (La. 1/30/19), 281 So.3d 628, 632.²

However, an exception to the exclusivity rule provides that nothing in the Louisiana Workers’ Compensation Law “shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.” La. R.S. 23:1032(B). (Emphasis added.) In interpreting this statute, the Louisiana Supreme Court has held that workers’ compensation shall be an employee's exclusive remedy against his employer for an unintentional injury covered by the act, but that nothing shall prevent an employee from recovering from his employer under general negligence law for an intentional tort. Young v. Doe, 11-49 (La. App. 5 Cir. 5/24/11), 67 So.3d 632, 634, citing Bazley v. Tortorich, 397 So.2d 475 (La. 1981), and Caudle v. Betts, 512 So.2d 389, 390 (La. 1987).

In the seminal case of Reeves v. Structural Pres. Sys., 98-1795 (La. 3/12/99), 731 So.2d 208, the Louisiana Supreme Court provided guidance as to the meaning of terms involved in the analysis of claims of this type, stating at 213:

“Substantially certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” [A]n employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the “substantial certainty” requirement. Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.

(Internal citations omitted.) The court further stated that the intentional act exclusion has been narrowly construed according to its legislative intent. Id. at 211.

In its discussions regarding the scope of the “substantial certainty” element, the Supreme Court has explained that “[b]elieving that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.” Reeves, 731 So.2d at 212. The court also cited to the following example as an explanation of the “substantial certainty” element:

․ In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only “intended” to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.

Id. at 212-13, citing Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers’ Compensation Law & Practice, § 365, p. 208.

Subsequent to Reeves, the Supreme Court held that “[t]o recover in tort against [his employer] under La. R.S. 23:1032(B), [a plaintiff] must prove the employer (1) consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result.” (Emphasis added.) Miller v. Sattler Supply Co., Inc., 13-2558 (La. 1/27/14), 132 So.3d 386, 387, citing Moreau v. Moreau's Material Yard, 12-1096 (La. 9/21/12), 98 So.3d 297.

An employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement. Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Perret v. Cytec Indus., Inc., 04-745 (La. App. 5 Cir. 11/30/04), 889 So.2d 1121, 1124, writ denied, 04-3004 (La. 2/18/05), 896 So.2d 34.

Here, plaintiff contends that summary judgment was inappropriate due to genuine issues of material fact concerning training, instructions, personal protective equipment, glove use, and supervision. However, the record contains no evidence that Taco Bell, Ms. Tedford, or Ms. Lydia Felix, the store manager, consciously desired or knew that injury to Mersendy was substantially certain. Mersendy testified he did not believe Ms. Tedford intended harm; after the accident, she demonstrated concern and took prompt action. Ms. Tedford likewise denied any intent or expectation that injury would occur and stated that employees could opt out of unsafe tasks.

Conflicting testimony existed regarding details of training and equipment, but these issues relate to negligence, not intentional wrongdoing. No evidence demonstrated previous similar accidents or that Ms. Tedford believed injury was inevitable.

The cases cited by plaintiff, Wainwright v. Moreno's, Inc., 602 So.2d 734 (La. App. 3 Cir. 1992), and Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. App. 3 Cir. 3/4/98), 708 So.2d 375, are distinguishable.³ Those cases involved facts establishing virtual certainty of injury, which are not present here.

CONCLUSION AND DECREE

Upon de novo review, we find no genuine issues of material fact remain and that Taco Bell is entitled to judgment as a matter of law. The judgment granting Taco Bell's motion for summary judgment and dismissing plaintiff's suit with prejudice is affirmed.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

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24TH JUDICIAL DISTRICT COURT (CLERK)

HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)

PIUS A. OBIOHA (APPELLANT)

JOSEPH G. GLASS (APPELLEE)

LINDA H. ADAMS (APPELLEE)

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ATTORNEYS AT LAW

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ALEXANDRA J. SERPAS (APPELLEE)

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FOOTNOTES

1.   Mersendy was born on April 5, 2007. As a minor, he lacked procedural capacity to sue. La. C.C.P. art. 683. For ease of reading, we use “plaintiff” to refer to Mersendy's father who filed the suit on Mersendy's behalf.

2.   Furthermore, Mersendy was not engaged in an employment activity prohibited by La. R.S. 23:161, entitled “Minors; prohibited employments.” Thus, plaintiff's allegations in the petition that child labor laws may have been violated is without merit.

3.   In Wainwright, the employer ordered the employee into a ditch that had previously caved in the day before, making injury virtually inevitable. In Chaisson, the employer removed machine safety devices, knew of prior injuries, and still required employees to operate the equipment. In both cases, the courts held the injuries were substantially certain to follow the employer's conduct.

JUDE G. GRAVOIS JUDGE