Do You Know the Rule? La. Exclusivity Provision

Baton Rouge, LA (WorkersCompensation.com) -- In most states, an employee cannot sue an employer in tort for an injury sustained at work. Instead, under the state’s worker’s compensation law, he would ordinarily be entitled only to worker's compensation benefits for the injury.

This is true in Louisiana. However, in that state, the worker may sue if the injury resulted from an “intentional act.” But there’s the rub. What exactly is “intentional?” 

In Louisiana, as in other states, it means that the employer must either:

• Consciously desire the physical result of the employer’s act; or
• Know that the result is substantially certain to follow from the conduct, notwithstanding the employer’s desire.

See Cole v. State Dep't of Pub. Safety & Corr., 825 So. 2d 1134, 1140 (La. 2002).

Given that most workers can’t show that the employer intended the harm, the majority of cases come down to whether the employer knew the result was substantially certain to follow from the conduct. The court in Cole explained what substantially certain is not. As the following chart indicates, “substantially certain” is a tough standard to meet.

Things to know about identifying ‘substantial certainty’

Substantial certainty requires more than a reasonable probability that an injury will occur.

Substantial certainty means that the injury was "inevitable or incapable of failing."

Mere knowledge and appreciation of a risk does not demonstrate substantial certainty.

The fact that the conduct is reckless or wanton is not sufficient to establish substantial certainty.

That an employer believes someone may, or even probably will, eventually get hurt if a workplace practice is continued is not sufficient to establish substantial certainty.

The 5th U.S. Circuit Court of Appeals applied these rules in Populars v. Trimac Transportation, Inc., No. 22-30413 (5th Cir. 01/03/23), a case involving a tanker cleaning facility and a chemical explosion.

In that case, a “wash rack technician” was tasked with washing tankers brought into the facility. To do so, he would start by draining the tanker's few remaining gallons into a five-gallon bucket. He would then empty that bucket into 55-gallon steel drums. 

One day, he drained a tanker which was correctly labeled as containing methylene diphenyl diisocyanate. He then did the same for a second tanker. That tanker was also marked, in both the company’s computer safety system and on the tanker’s placard, as containing MDI.

It turns out, however, that the second tanker carried a different chemical—monoethanolamine. The two chemicals tend to explode when combined, and they did so on this occasion.

The employee sued the company in tort, asserting that it intentionally harmed him. The court rejected the claim. It noted that the employee failed to show that the company knew it mislabeled the tanker.

It was not enough, the court observed, for the employee to show that the company intentionally coded into its system that the tanker contained MDI. While the company may have acted negligently, or recklessly, that was not enough to show intent, the court held. 

The employee instead needed to show that the company knew its designation was wrong, and, therefore, knew that the injury was inevitable. 

The court affirmed the District Court’s ruling, granting summary judgement to the employer.

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