Louisiana’s Substantial Certainty Exception to Worker’s Compensation Exclusivity

In Batiste v. Bayou Steel Corp., 10-1561 (La.10/1/2010), the Louisiana Supreme Court revisited the standard for establishing intentional tort as an exception to Worker’s Compensation exclusivity under Louisiana Revised Statute 23:1032(B). The plaintiff was tightening an electrode (in the course and scope of his employment) when his wrench slipped, causing him to lose his balance and fall 35 feet to the ground. The plaintiff filed a wrongful death suit alleging the accident was substantially certain to happen, and therefore fell outside the exclusivity of the worker’s compensation scheme of recovery.

The Louisiana Supreme Court reaffirmed the test set forth in Bazley v. Tortorich, 397 So.2d 475 (La. 1981), for establishing an intentional act, which requires the actor to either 1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.

The Louisiana Supreme Court also reaffirmed the “substantial certainty” test as set forth in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So. 2d 208, 213:

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.

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” ‘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.’ ” Jasmin v. HNV Cent. Riverfront Corp., at 312. “[A]n 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.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La. App. 4 Cir. 1993), writ denied, 629 So.2d 347 (La. 1993). “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir. 1991).

Based on these tests, the Supreme Court held that the plaintiff could not establish an intentional tort as a matter of law and affirmed the lower court’s granting of summary judgment against the plaintiff. The Court reasoned that the plaintiff had performed this same task thousands of times over 14 years, and held that the employer’s failure to provide safe working conditions and proper safety equipment could possibly rise to the level of gross negligence, but do not rise to the level of an intentional tort.

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