DIXON, Chief Justice.
In March, 1981 Mrs. Gladys Virginia Owens and her two major children filed suit against executive officers of Crown Zellerbach. They sought to recover for injuries allegedly suffered by their decedent, Earnest E. Owens, due to his exposure to
The defendants filed a motion for summary judgment, asserting that R.S. 23:1032 of the Louisiana Workmen's Compensation Act, as amended by Acts 1976, No. 147, was plaintiff's exclusive remedy and barred the suit. The trial court granted the motion. The court of appeal affirmed as to the wrongful death action but reversed and remanded as to the survival action. 430 So.2d 1248 (La.App.1983). Defendants alone sought review. The wrongful death action is therefore not before this court. As to the survival issue, we affirm and remand for further proceedings.
Although defendants have styled their motion as one for summary judgment, neither they nor plaintiffs have supported or opposed the motion with affidavits in compliance with C.C.P. 966-67. No discovery has taken place. The record contains only pleadings and briefs. In reality, the case is presented to us as if on an exception of no cause of action in which the defendants assert the 1976 amendment as an affirmative defense to allegations of the plaintiffs, and we treat it as such. Cf. Haskins v. Clary, 346 So.2d 193 (La.1977). Such an exception attacks the legal sufficiency of the petition, and all well pleaded allegations are accepted as true.
In plaintiffs' petition, the following pertinent allegations are made. Plaintiffs are the widow and major children of the decedent Earnest E. Owens. From 1947-1963, defendants were executive officers of Crown Zellerbach at its plant in Bogalusa. They had a duty to provide Owens with a safe place to work and to warn him of any dangers associated with working with asbestos. During this same period, Owens worked at the plant as an asbestos man. This required him to handle large quantities of asbestos and exposed him to asbestos dust and fibers. As a result of this exposure, he contracted asbestosis and died from that disease on June 27, 1980.
Based on these allegations, plaintiffs assert the cause of action Owens would have had if he had survived. Guidry v. Theriot, 377 So.2d 319, 322-25 (La. 1979). The action is based on this court's holding in Canter v. Koehring Co., 283 So.2d 716 (La.1973), that an injured worker could sue executive officers of his employer in negligence in addition to his workmen's compensation remedy against his employer. Defendants counter that Act 147 of 1976 amended R.S. 23:1032 to bar such suits against executive officers as of October 1, 1976. Bazley v. Tortorich, 397 So.2d 475 (La.1981).
The merit of defendants' motion therefore depends on a determination of when Owens' cause of action (hence plaintiffs' survival action) accrued.
In Seals v. Morris, 410 So.2d 715, 718 (La.1982), this court recognized that the elements of a cause of action based on negligence under C.C. 2315-16 are fault, causation and damages. In discussing the meaning of res judicata in Louisiana, the court has also stated that a cause of action is "the state of facts which gives a party a right to judicially assert an action." Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350, 353 (La.1975). Damages are necessarily included in this state of facts.
The element of damages as a necessary requirement in a negligence action is also implied by C.C. 3492, effective January 1, 1984:
This article is based on C.C. 3536-37, prior to January 1, 1984:
Since prescription cannot commence until damages are sustained, a cause of action does not accrue until that time.
Accordingly, the judgment of the court of appeal is affirmed, and the case is remanded to the district court for further proceedings consistent with the views herein expressed.
MARCUS, J., concurs in the result.
LEMMON, J., concurs.