In two recent per curiam decisions, the Louisiana Supreme Court protected employers who exposed their workers to high probability of harm from known unsafe working conditions by applying the "inevitability" test for determining whether a work place injury caused by an employer was intentional. In both cases, the Supreme Court found that the injuries were not "inevitable", thus immunizing the employer from the tort claim under the Louisiana Worker's Compensation Act.
To recover in tort against an employer under La.R.S. 23:1032(B), the employee victim must prove an intentional tort, which the Louisiana Supreme Court defines as: (1) the employer consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) the employer knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result. Moreau v. Moreau's Material Yard, 12-1096 (La. 9/21/12), 98 So.2d 297.
The "substantial certainty" test was described by the Louisiana Supreme Court in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208, 213, as follows:
-Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers' compensation.
-"Substantially certain to follow" requires more than a reasonable probability that an injury will occur and "certain" has been defined to mean "inevitable" or "incapable of failing."
-An employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the substantial certainty requirement.
-Mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.
The Louisiana Supreme Court in Simoneaux v. Excel Group, LLC, 06-1050 (La. 9/1/06), 936 So.2d 1246, 1248, further clarified that the employer's actions in providing poor working conditions "may have been negligent or even grossly negligent, but they were not intentional."
In each of the two recent cases before the Louisiana Supreme Court, the Court found that the injuries sustained were not "inevitable." In Ashton Miller, Jr. v. Sattler Supply Co., 13-2558 (La. 1/27/14), the employee died after a large engine block he was cleaning fell on him. The employer had been repeatedly informed about frayed straps, rusted chains, and lack of a safety latch on the engine hoisting equipment. Nevertheless, the Court held that the injury was not "inevitable" and that the, "mere knowledge that a machine is dangerous, and that its use creates a high probability that someone will eventually be injured, is not sufficient to meet the substantial certainty requirement."
In Rhonda Danos v. Boh Bros. Construction Co., 13-2605 (La. 2/7/14), the employee was directed to use a saw to cut a pipe which was laying flat on the ground without support. The pipe caved inward at the cut, pinching the blades of the saw. The saw then kicked back and struck the employee in the head and neck. Boh Bros. presented testimony that no one intended for the employee to be harmed in any way, and presented evidence establishing that a similar accident had never occurred in Boh Bros.' history of operation. In opposition, the plaintiffs submitted expert evidence indicating that Boh Bros. should have known that using the cutting saw in this manner would cause injury. Even accepting the plaintiffs' expert evidence, the Supreme Court found that the injury was not "inevitable." The Court found that, in hindsight, Boh Bros. may have been negligent in directing employees to use unsafe cutting procedures, but its actions were not intentional.
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