When a non-seaman worker is injured on the job in Louisiana, whether he is working a “land- based” job or working as a longshoreman (someone engaged in maritime employment on the navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, building, etc.), his exclusive remedy against his employer is compensation benefits.  In other words, the worker is prohibited from suing his employer to recover damages as a consequence of his injury.  This is proscribed by Louisiana Revised Statute 23:1032 and the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901, et seq.  Not only is the injured worker prohibited from suing his employer, he is also barred from suing one of his co-employees whose negligent act he believes caused or contributed to his injury.  In plain language, even if the worker was injured due to the negligence of his employer (which can be vicariously responsible for the negligent acts of a co-employee), he cannot sue his employer.  Instead, he automatically qualifies for compensation benefits until he reaches maximum medical improvement and the employer is responsible to pay for his medical costs.

There is an exception, however.  If the injured worker can show that his injury was caused by an intentional act on the part of the employer, he is allowed to pursue a tort remedy against that employer.  Many times, to get around the exclusive remedy provisions, attorneys on behalf of the injured worker will allege the injury resulted from negligence so egregious that it rises to the level of intentional.  Thus, the controversy.  When does an action or inaction by an employer that results in injury rise to a level of being so flagrant, wanton or offensive that, by definition, it is deemed to have been intentional?

The Supreme Court of Louisiana took up this issue in its decision of September 21, 2012 in Moreau v. Moreau’s Material Yard, et al., 2012-1096 (La. 9/21/12); 2012 WL 4236303.

In that case, a surviving spouse filed suit against her husband’s employer alleging its failure to adhere to proper safety procedures, which resulted in his death.  The employer moved for summary judgment, alleging plaintiff’s exclusive remedy was in workers’ compensation as she was unable to show an intentional act on its part.  The district court denied summary judgment, and the court of appeal denied supervisory writs.  The employer filed a writ application to the Louisiana Supreme Court.

To recover in tort against a defendant under La. R.S. 23:1032(B), a plaintiff must prove an injury resulted from an “intentional act.”  In Bazley v. Tortorich, 197 So.2d 475 (La. 1981), the Louisiana Supreme Court explained an intentional act 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.  In the instant case, the widow did not allege defendant consciously desired to cause harm to decedent.  Rather, she asserted decedent’s injuries were substantially certain to follow from defendant’s conduct.

The Court noted its prior decision in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99); 731 So.2d 208, 213, where the Court discussed the “substantial certainty” requirement 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.”  [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.   Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.

Reeves, 731 So.2d at 213 (internal citations and quotations omitted).

 The Court ruled that the widow alleged that defendant required decedent to work under unsafe conditions and failed to provide necessary safety equipment.  Accepting the widow’s allegations as true, the Court did not find the accident was substantially certain to occur.  As the court explained in Simoneaux v. Excel Group, LLC, 06-1050 at p.3 (La. 9/1/06), 936 So.2d 1246, 1248, an employer’s actions in providing poor working conditions “may have been negligent or even grossly negligent, but they were not intentional.”

The problem with this decision is that there is still a very thin distinction as to when an act, even one that is grossly negligent, crosses the line and becomes an intentional act.  To this writer, it is a subjective determination which can lead to inconsistent results.  For instance, if two different juries were to hear the same case, the same set of facts, one jury could find that the act, while grossly negligent, did not rise to the level of being intentional while the other jury could find that it did.  Does that make one right and the other wrong when reasonable people can reach opposing conclusions?  Chances are that in either situation, if reviewed by an appellate court, the court would have a difficult time reversing the jury’s decision unless the record revealed a total abuse of discretion on the part of the jury.  This subjectivity is not segregated to civil litigation.  In the criminal law, a person may be charged with negligent injury or negligent homicide.  Generally these may be defined as the injuring or killing of a person without deliberation or premeditation resulting from the improper use of reasonable care or skill while in the commission of a lawful act.  Again, judges and juries are called upon to weigh the facts and decide if the accused was so grossly negligent that his acts rose to the level of criminality.

Perhaps the Louisiana Supreme Court should have stated that for negligence to rise to the level of being intentional, the act has to result in consequences that a reasonable person would expect to occur to the exclusion of any other.  In other words, instead of stating that the actor must know that the “result is substantially certain to follow from his conduct,” the Court should have adopted a more narrow definition and, using the “reasonable man” standard, state that the actor must know that his conduct will result in injury.  Not that it may, but that it will.  That, at least, will lessen the confusion.