The Louisiana Supreme Court recently allowed an employee to sue his employer in intentional tort, based upon an alleged battery during a riot control training exercise. In Cole v. State of Louisiana, Department of Public Safety and Corrections (see link that follows), plaintiff was a correctional officer at the Phelps Correctional Center in DeQuincy, LA. As a member of the tactical unit, Cole was being trained to take charge in any situation involving inmate disturbances. On the date of Cole's injury, there was a total of five training exercises conducted at the Hunt Correctional facility. During the third exercise, called the "angry crowd exercise," Cole was assigned to role-play an inmate while other trainees role-played as guards. Batons were used, and the only protective gear involved were helmets. During the exercise, Cole was reportedly struck on the left arm, shoulder, neck and head.

Cole's supervisor acknowledged that the exercise was physical, but that full force strikes should not have been used. Videotape presented at trial showed that Cole had his helmet on during the entirety of the exercise. The trial court found that the employer was substantially certain that Cole's injuries would follow and allowed suit against Cole's employer in tort.

The Supreme Court, in construing the exclusive remedy provision, acknowledged that the intentional act exclusion should be construed narrowly. Nevertheless, the Court remarked that it must apply the legal precepts of general tort law related to the particular intentional tort in each case. The Court went on to provide a thorough history of its opinions on the intentional act exception before concluding that Cole could sue for the intentional tort of battery against his employer.

Justices Victory, Traylor and Knoll each wrote excellent dissents setting out why an intentional act had not occurred. Justice Victory points out that plaintiff's claim does not meet the definition of "substantially certain to follow" as previously established by the Supreme Court. Justice Knoll marches through a nearly complete examination of intentional tort case law before distinguishing the present case from others in which intentional tort was permitted. Ultimately, Justice Knoll relied on plaintiff's lack of credibility in deciding that the intentional act did not occur.

http://www.lsba.org/opinions/Supreme_Files/01c2123.pdf