Boyer v. Johnson

The primary issue concerns the liability of an employer for injury sustained by a minor who was employed in violation of child labor laws prohibiting the employment of children as drivers of commercial motor vehicles or for work in connection with power-driven machinery.

Affirming the district court, the intermediate court dismissed this suit by the parent of a 15-year-old boy for his wrongful death when he lost control of a commercial motor vehicle, which he had been employed to drive. 350 So.2d 961 (La.App. 2d Cir. 1977). We granted certiorari, 353 So.2d 1038 (La.1977), to review the court of appeal’s conclusion that the employment of the boy in violation of the statutory prohibition was neither the cause-in-fact nor actionable fault so as to impose liability upon the employer.

The Facts

The plaintiff Boyer sues for damages suffered on account of his son’s death. The boy, Johnny C. Boyer, Jr., age 15, was employed to drive a Volkswagen panel truck to various cities in Louisiana and Mississippi.

The defendant Johnson employed young Boyer after ascertaining that he had a driver’s license. He rode with the boy in the delivery truck for two days to supervise him and observe his ability to drive. In the remaining three days of employment, young Boyer drove the Volkswagen truck to deliver fireworks along Johnson’s sales route, with Johnson preceding him in another delivery vehicle.

On December 2, 1968, the fifth day of his employment, Johnny was driving the van, loaded with fireworks, to make deliveries in several places between Monroe and Jones-boro. He apparently lost control of the vehicle, which skidded along the left shoulder and into a ditch, then struck a tree, killing him. The defendant Johnson at that time had been driving the other vehicle a mile or two ahead and was waiting for Johnny at a store, and the boy was apparently trying to catch up with him.

Basis of Liability

The bases for delictual liability alleged by the plaintiff father are the defendant Johnson’s fault in hiring his son in violation of several child labor laws:

La. R.S. 23:161(10), prohibiting the employment of a minor under eighteen years of age as driver of a motor vehicle used for commercial purposes; La. R.S. 23:163, prohibiting the employment of a minor under sixteen to work in connection with power-driven machinery; La. R.S. 23:161(4), prohibiting the employment of a minor under eighteen to transport explosives; and La. R.S. 23:166, 211.1, prohibiting the employment of a minor between the ages of fourteen and sixteen during school hours without a work certificate evidencing participation in an approved vocational program.

The plaintiff, who is granted a right of action for his son’s wrongful death by Civil Code article 2315, may recover if he can prove that defendant had a duty to observe a certain standard of care toward the boy; that defendant breached his duty by falling below that standard; that the defendant’s breach of duty was a cause-in-fact of the boy’s death; and that the harm which actually occurred—the fatal highway accident—was the sort of harm that the defendant’s legal duty was designed to prevent. Dixie Drive It Yourself System New Orleans, Inc. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

Statutory Intent to Protect Against Risk and Harm Encountered

In enacting the child labor statutes, the legislature imposed on employers certain duties, in order to protect children from their own youth and inexperience and from other risks of employment.

It is not disputed that Johnson had a legal duty not to hire Johnny C. Boyer, Jr., to deliver fireworks in a commercial vehicle. Nor is there any doubt that defendant’s violations of the law, or at least some of them, were causes-in-fact of the fatal accident: Johnny happened to be on the road on this particular day because he had been employed to drive this particular truck to carry fireworks to Jonesboro. That he might have died in some other way, even in some other traffic accident or carrying some other cargo, is irrelevant to the determination of causation of his death as it in fact occurred. Of the four statutory duties violated by the defendant, only the requirement that Johnny not be hired during school hours without a work permit may not have been a necessary antecedent to the accident.

A mere finding of causation in fact, however, does not establish defendant’s liability. Plaintiff can prevail only if the risk of the harm that actually occurred fell within the scope of the duty breached. See Dixie and Laird, cited above.

The court of appeal held correctly that the violations of the fireworks and work permit statutes do not create civil liability for Johnny’s death. The court treated both issues in terms of causation, stating that the work-permit violations “are too remote from the proper sphere of causation,” and that transportation of fireworks “has no direct or indirect relation to the cause of the accident.” 350 So.2d at 963. It would have been enough, however, to conclude that neither statute was intended to guard against the risk of this traffic accident: The work permit provisions are to protect the academic and vocational needs of school-age children, and the fireworks transportation law is to protect them from explosions. This resolution of the duty/risk analysis renders moot the resolution of nice questions of causation. See Laird v. Travelers Indemnity Co., cited above, 267 So.2d at 720.

The court of appeal erred, however, in concluding that defendant's hiring of Johnny to drive the panel truck, in violation of the laws against employing minors to drive commercial vehicles and to operate power-driven machinery, did not impose civil liability for Johnny’s resulting death. The court seemed to acknowledge that “if the deceased had not been driving the van, he would not have been killed” (350 So.2d at 964), but stated that “causation must be more direct and not so remote.” Id.

Despite the adoption by this court of the duty/risk approach to resolution of negligence questions in the 1962 case of Dixie Drive It Yourself System v. American Beverage Company, cited above, one distinguished commentator has noted that intermediate courts “continue to employ causation language to refer to issues other than cause-in-fact, occasionally to the complete detriment of clarity of analysis and correctness of outcome.” Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1, 17-19 (1973).

It is the substance, of course, and not the form in which an analysis is cast, which produces a sound result. It does no harm, for instance, to say that an act is the “legal cause” of a harm if the act falls below a standard of conduct designed to prevent the harm. Yet in this case the excursus into “direct,” “indirect,” and “remote” causation may have diverted the court of appeal from the fundamental inquiry: Did defendant break laws designed to prevent this type of risk and harm?

In finding “that the defendant was void of any actionable substandard conduct,” the court of appeal pointed out that the trial court found Johnny himself negligent in causing the accident; that Johnny had a driver’s license; and that Johnson rode with Johnny for the first two days to observe and supervise his driving.

These observations cannot erase the fact that defendant’s substandard conduct was a cause-in-fact of the accident. They do, however, have their place in the analysis of whether the risk was within the ambit of defendant’s duty: If it could be shown that the standard of care was imposed on defendant only to protect non-negligent children, or those without driver’s licenses, or who drove unobserved and unsupervised, then defendant would prevail. The statutes violated by defendant, however, contained no such express or implied limitations.

What was the purpose of the laws prohibiting Johnson from hiring Johnny to drive a commercial vehicle, or any power-driven machinery? To protect Johnny from accidents which might befall him while operating such machinery, as is most clearly held in the early jurisprudence interpreting and applying these enactments.

Justice Provosty, writing for this court on rehearing in Alexander v. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806 (1916), well before the advent of the duty/risk analysis, seemed to anticipate such an approach when he held an employer who violated a child labor statute liable for injuries sustained by his young employee, without a showing of any further negligence on the employer’s part: “The violation of the child labor law, was, however, negligence on the part of the defendant [employer] . This law is positive in its prohibition of the employment of children; it is absolute in its terms; allows of no exceptions or excuses. . The duty imposed by said statute upon the defendant not to employ a child in a dangerous occupation is thus imposed for the protection of the child . . . .” Id. at 67, 69, 72 So. at 811.

The court of appeal in this case noted the Alexander decision, but relied instead on Jones v. Insurance Company of North America, 303 So.2d 902 (La.App. 1st Cir. 1974), in which a minor was injured while operating a tractor. His employer had hired him in violation of La.R.S. 23:163, the power-driven machinery statute involved in this case.

The Jones court relied solely on Flores v. Steeg Printing & Publishing Co., 142 La. 1068, 78 So. 119 (1918), to derive a set of rules governing minors injured in the course of employment. The first of these rules was that “[p]ersons who employ children in work in or about dangerous machinery, especially where such employment is proscribed by law, must anticipate that children will exercise only such judgment and discretion as will ordinarily be exercised by children of like age under similar circumstances. . . . ” but that the employer may avoid liability by “instructing and informing the child about and against the dangers incident to the employment . . .” 303 So.2d at 909 (emphasis added).

The Jones court erred in inferring such a rule from this court’s decision in Flores. The rule seems accurate enough where there is no statute, or perhaps to supplement an employer’s statutory duty; but “instructing and informing” is no substitute for compliance with the law.

In Flores this court found that the only statute violated by the employer was a statute requiring a work-permit before employment of a minor of fifteen years and older. The statute also prohibited any employment whatsoever of children under fourteen years of age.

The court stated that the enactment had as its object “to guard against the employment of a child under fourteen. It may be presumed that the Legislature felt that children over fourteen were capable of taking care of themselves in ordinary occupations . . . .” 142 La. at 1073, 78 So. at 121.

The statutory duty breached was not intended to protect against the risk of harm to (the death of) the 15-year-old decedent in that case in an industrial accident. Therefore, it was left for the court to examine whether defendant had discharged his non-statutory duty to exercise due care in instructing and warning the decedent.

The Flores case does not stand for the proposition that a court will substitute its own idea of the proper standard of care for a standard set by the legislature. In Flores, for example, the court’s analysis would have imposed liability upon the employer if the injured minor had been fourteen years of age and thus employed in violation of a statute prohibiting such employment and designed to protect fourteen year olds from the risk of harm through industrial injury. To the extent Jones conveys a contrary impression, it is overruled.

“Negligence Per Se ”

In holding the defendant civilly liable for his breach of a duty created by a criminal statute, we do not intend to revive the doctrine of “negligence per se.” A violation of a criminal statute does not automatically create liability in a particular civil case, because the statute may have been designed to protect someone other than the plaintiff, or to protect the plaintiff from some evil other than the injury for which recovery is sought. Laird v. Travelers Insurance Company, cited above; Weber v. Phoenix Assurance Co. of New York, 273 So.2d 30 (La.1973).

In this sense, criminal statutes can be said to be mere guidelines for the court. Similarly, a criminal law designed to protect one person from one harm may be thus used by the court as a starting-point toward fashioning an analogical standard of conduct of due care to protect other persons subjected to generically similar risks.

Yet, where a criminal statute imposes a duty designed to protect a particular person from a particular type of injury, one who has so injured such a person by a breach of the prescribed duty cannot evade civil liability by persuading the court to disregard the clear legislative prohibition as if it were a mere discretionary “guideline.”

A Minor’s Contributory Negligence

Another of the rules stated in Jones to be derived from Flores was that “[i]n the absence of a statutory provision expressly or impliedly depriving an employer of the right to plead contributory negligence or assumption of the risk against a minor seeking damages for injuries sustained in the course of the employment, an employer may assert such defenses . . . .” 303 So.2d at 909. Since in the Jones case the court found the employer not to be negligent, it did not reach the question of contributory negligence.

The rule, as stated, may be accurate where the risk of harm encountered by the minor is not the risk of harm the statute was designed to prevent. Nevertheless, where the purpose of a statute is to protect the minor against the risk of his own negligence (as here, where the statute absolutely prohibits the employment of a minor below a certain age in work connected with power-driven machinery or in driving a commercial vehicle), the general rule is that the minor’s contributory negligence or assumption of risk will not defeat recovery for his injury or death, the very risk and harm the statute was designed to prevent. Restatement of Torts, 2d, Section 483, Comments e and f (1965); Prosser on Torts 425-26, 528 (1971); Note, 20 La.L.Rev. 796 (1960).

The defendant in this case, who violated laws which sought precisely to protect Johnny from his own youth, inexperience, and relative lack of judgment, cannot be heard to assert that these very defects in Johnny’s character caused the accident. His death, while driving a loaded delivery truck on a long-distance journey, apparently from his own inability to handle the vehicle, was one of the evils the legislature was trying to avoid by forbidding Johnson to hire the boy.

Our decision today is not inconsistent with the prior jurisprudence of this court. In Darsam v. Kohlmann, 123 La. 164, 48 So. 781 (1909), the most nearly contrary decision, we applied the law of contributory negligence only after finding the employer’s violation of the child labor laws not to be the “proximate cause” of his employee’s injuries. The Darsam court drew a distinction between employees who were injured “in the actual discharge of the duties for which they were employed in violation of prohibitory statutes, and hence sustained their injuries by reason of such employment” (without reference to any contributory negligence), and those whose negligence was in performing acts outside the scope of their employment (where contributory negligence might bar recovery). 123 La. at 172, 48 So. at 784.

In the Alexander case, cited above, Justice Provosty noted that Darsam had not dealt with the question whether an employer violating a child labor law may plead his employee’s contributory negligence which occurred in the scope of his assigned duties, and said the question was “an open one in our jurisprudence.” 140 La. at 68, 72 So. at 811. And in the Flores case, cited above, this court recognized that where a law absolutely prohibits the employment of certain minors in certain occupations, “[t]he reason for the prohibition is presumed to be that . . . [they] are incapable of taking care of themselves, and it might be illogical to hold them responsible for their negligence in the event of an accident.” 142 La. at 1073, 78 So.2d at 121.

Other Defense Contentions

Johnny’s possession of a valid driver’s license does not excuse defendant’s breach of duty. That Johnny could have died in some other automobile accident is, as we have shown, irrelevant to causation in fact; and it is relevant to the duty/risk analysis only insofar as it might illuminate legislative intent in prohibiting the boy’s employment to drive a commercial vehicle.

The legislature might have decided to permit a fifteen-year-old to drive a private car for private purposes, but not to be employed to drive a commercial vehicle, for any number of sensible reasons. A professional driver might be required to drive longer distances, for greater periods of time, in larger and more unwieldy vehicles, under conditions dictated by the terms of his employment rather than by his own desires or capabilities.

In this case, Johnny was driving a Volkswagen panel truck on a state highway, some fifty miles from home, and had apparently driven several hundred miles in the five days he worked for Johnson. Even if the facts were not so strong, however, we would be forced to conclude that the legislature is free to set one standard for parents and for the state, another for-employers, provided, at least, there is (as here) a rational basis for the difference.

Likewise, the defendant’s own supervision of Johnny, and his determination that the boy was a competent driver, are irrelevant in the face of the statutory prohibition against the boy’s employment.

In the absence of a law prohibiting the youth’s employment to drive under any circumstances, it would be proper for the court to look to such actions as evidence of the employer’s due care. But where the legislature has indicated that no amount of supervision, instruction, and observation is sufficient to avoid the prohibition, we will not substitute our own opinions — or allow the defendant to substitute his own estimates of the child’s competence and maturity — for those of the legislature.

This is particularly true where the purpose of the legislative rule is to protect children. The legislature may prefer to err on the safe side. Here the legislature, proceeding from generalized facts about fifteen-year-old boys, assessed Johnny’s qualifications as a professional truck driver more accurately than Mr. Johnson did in his two days of observation; and tragically so.

Finally, the defendant argues that while his statutory duty may have been for the protection of the child, it was not for the protection of the child’s father. The defendant cites the Alexander case, cited above, for this proposition.

Alexander, however, rejected only a mother’s claim for her own expenses and mental anguish, where her son did not die from his injuries, and where she had consented to his illegal employment (unlike the present father).

The wrongful death provisions of Civil Code article 2315 give parents a right to claim damages for the death of their children. Where a statute is designed to protect a child from the risk of a certain injury, it should be read with article 2315 to protect his parents from the risk that their child will die from the same injury.

Decree

The judgments of the district court and the court of appeal in favor of defendant Joe E. Johnson and against plaintiff J. C. Boyer are reversed. The case is remanded to the Court of Appeal, Second Circuit, in order that it may fix the damages to which plaintiff is entitled and render judgment for such sums against the defendant. All costs are taxed against the defendant.

REVERSED AND REMANDED.

SANDERS, C. J., dissents and assigns reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

. The defendant Johnson was the president, manager, and sole-salaried employee of a small family corporation, Johnson’s Toy & Novelty Co., Johnny’s nominal employer. Johnson personally hired and supervised Johnny and knew that he was a 15-year-old minor.

Neither pleadings nor briefs raise any issue that the corporation’s liability for workmen’s compensation excludes not only its tort liability, La. R.S. 23:1101, but also the tort liability of its president-manager for his personal fault.

Prior to Act 147 of 1976, an officer or agent of the employer corporation could be held liable in tort for his own personal fault, notwithstanding the employer’s immunity. La. R.S. 23:1101 (prior to 1976 amendment); Canter v. Koehring Co., 283 So.2d 716 (La.1973). Johnson is being sued for his own personal fault in disregarding the child labor statutes, not for imputed or vicarious negligence; whatever his relationship to the employer corporation, he is a distinct person and may be sued as such for his own fault, which occurred prior to the effective date of Act 147 of 1976.

. Although the precise point before us is a matter of first impression in this court, the overwhelming majority of courts in other states which have ruled on the question have rejected the employer’s plea of contributory negligence, since to do otherwise would undermine the purpose of the child labor laws. See, e. g., Boyles v. Hamilton, 235 Cal.App.2d 492, 45 Cal.Rptr. 399 (1965); Dusha v. Virginia & Rainy Lake Co., 145 Minn. 171, 176 N.W. 482 (1920); Vincent v. Riggi & Sons, Inc., 30 N.Y.2d 406, 334 N.Y.S.2d 380, 285 N.E.2d 689 (1972); Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 A. 642 (1907); Schilly v. Baker, 184 Tenn. 654, 202 S.W.2d 348 (1947); Smith v. Uffelman, 509 S.W.2d 229 (Tenn.App.1974); Pitzer v. M. D. Tomkies & Sons, 136 W.Va. 268, 67 S.E.2d 437 (1951). See also Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S.W. 887 (1920) (dictum); Frazey v. Hoar, 208 Kan. 519, 492 P.2d 1316 (1972) (dictum).

. If an accident was not caused by the minor’s negligence, but entirely by the independent act of a third party, a defendant would presumably disclaim liability on the ground that the harm which occurred was not one the child labor statute was designed to prevent, since drivers of any age are equally vulnerable to such external forces. Whatever the merits of such an argument, the issue is not before us under the present facts.

. The minor was employed to work at a safe place on moss gin premises, separated by a partition from moving machinery. In violation of instructions and of his employment duties, he went beyond the partition and was injured. We might disagree with the Darsam court that the additional risk was not within the statutory protection; however, as noted in the text above, the decision does not disagree with the principle that the employer would be liable if the minor was injured by the risk prohibited by the statute, as here.