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O'Neill v. Johns-Manville Corp.
Citations: 463 So. 2d 671; 1985 La. App. LEXIS 8179Docket: No. CA 2203
Court: Louisiana Court of Appeal; January 10, 1985; Louisiana; State Appellate Court
Shirley O’Neill, widow of Marnel H. O’Neill, Jr., appeals a judgment that upheld an exception of no cause of action filed by Flintkote Company, resulting in the dismissal of her wrongful death claim. Marnel O’Neill, employed as a machine tender at Flintkote's asbestos mill from 1947 to 1957, allegedly suffered extensive asbestos exposure leading to his lung cancer death in 1981. O’Neill's suit seeks damages for wrongful death and pre-death suffering, naming Flintkote, Johns-Manville Corporation, its successor, and affiliated parties as defendants. Flintkote argued that O’Neill’s petition did not assert any "intentional acts," thus limiting her remedy to Louisiana's workmen’s compensation laws. The trial judge accepted this argument, dismissing the case. On appeal, O’Neill contends her petition adequately claims intentional acts under Louisiana tort law, referencing the standard set in *Bazley v. Tortorich*, which defines intentional acts as those where the actor desires the outcome or believes it is substantially certain to occur. In *Mayer v. Valentine Sugars, Inc.*, the court confirmed that intent may be pleaded generally. O’Neill’s petition alleges various intentional acts by Flintkote, including failing to maintain a safe work environment and concealing medical information, which she argues were knowingly harmful. The court found that the allegations meet the threshold established in *Bazley*, thus reversing the trial judge's dismissal and remanding the case for further proceedings. The applicable law for the cause of action is confirmed as La.R.S. 23:1032, effective from 1976, with the cause arising on the date of Marnel O’Neill’s death, April 14, 1981.