MELODY P. SMITH
MARCUS SAM, ET AL.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 20144879 HONORABLE MARILYN CARR CASTLE,
A. Angus Melody P. Smith COUNSEL FOR PLAINTIFF/APPELLANT
Edward Harwell COUNSEL FOR DEFENDANT/APPELLEE
composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J.
Gremillion, and John E. Conery, Judges.
THIBODEAUX, Chief Judge, concurs in the result.
SHANNON J. GREMILLION JUDGE
Smith,  the plaintiff-appellant, appeals the trial
court's judgment granting summary judgment in favor of
the defendant-appellee, Circle K Stores, Inc. For the
following reasons, we affirm.
AND PROCEDURAL BACKGROUND
who was a manager-trainee of Circle K, was robbed at gunpoint
by Marcus Sam while attempting to make a bank deposit for
Circle K. Smith, who has collected workers' compensation
benefits since the incident, filed a petition for damages
against Sam and Circle K amongst others. Circle K thereafter
filed an exception of no right of action/no cause of action
and motion for summary judgment urging that Smith's only
remedy existed in workers' compensation and that Smith
would not be able to prove that an intentional tort was
committed by Circle K. Smith filed an amended and
supplemental petition alleging that the Circle K manager was
"substantially certain" that Smith would be robbed
after instructing Smith to make the deposit in front of Sam.
The petition further alleged that Sam was the boyfriend of
Smith's co-worker. Smith further claimed that the robbery
was inevitable due to the announcement in front of customers.
Smith's amended petition states:
Circle K Stores committed intentional torts of assault and/or
battery on Plaintiff, Melody Smith, because it was
substantially certain that one within earshot of hearing that
a person is making a money deposit to the bank would be
robbed by an armed person, and as a consequence, it was
substantially certain that its employee would be shot and
wounded or killed in the process of a robbery.
concedes that the manager did not intend for the robbery to
occur but that she was substantially certain it would occur.
At a December 2014 hearing, the trial court indicated that
summary judgment was premature and that Smith should be
allowed discovery before it ruled on the motion.
2016, after discovery deadlines had lapsed, Circle K filed
another motion for summary judgment urging that Smith's
tort claim was barred by the exclusive remedy provisions of
the LWCA and that Smith had not "taken a single
deposition, obtained a single affidavit, produced a public
record or otherwise taken any action to support her claim of
a conspiracy or to otherwise show that Circle K was
substantially certain that Smith would be injured in a
an October 2016 hearing, the trial court rendered judgment in
November 2016 granting summary judgment in favor of Circle K.
Smith now appeals and assigns as error:
1. Granting a Summary Judgment in a case involving
examination of a person's knowledge, intent or
credibility when it was demonstrated by the plaintiff that
the manager's intent ...