Summary Judgment Was Not Appropriate in Jones Act Case Against Louisiana

Plaintiff worked on a ferry boat operated by the State of Louisiana, Department of Transportation and Development.  On August 1, 2007, she slipped and sustained injuries while cleaning an oil leak the vessel’s engine room.  After Plaintiff filed a Jones Act suit against the State, the State moved for summary judgment on the issue of causation, arguing that Plaintiff’s own negligence was the sole of her injury.  In response, Plaintiff filed her own motion for summary judgment on the issue of liability, arguing that the State’s vessel was unseaworthy and that the State was negligent in failing to repair the vessel.  The trial court agreed with Plaintiff and the State appealed.

Louisiana’s Third Circuit first addressed causation.  The State argued that Plaintiff could not prove causation because, “while cleaning the oil with soap and water, she herself created the condition which caused her injury.”  The Third Circuit recognized that a seaman need only present “slight evidence” that her injuries were caused by her employer’s negligence in order to reach the jury (and avoid summary judgment).  Here, Plaintiff presented sufficient evidence to avoid summary judgment:

In a transcript attached to her opposition to the State’s summary judgment motion, Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on which she slipped.  She further testified that she was cleaning according to operational instructions.  In contrast, the State alleges she created the condition of soapy water mixed with oil through her own act of mopping.  Therefore, there exists a genuine issue of material fact as to causation.

As for liability, the Third Circuit determined that summary judgment should not have been granted in Plaintiff’s favor.   Plaintiff submitted that the vessel’s engine leaked oil, that its propeller shaft leaked water, and that the vessel had “poor flooring conditions.”   But the “presence of oil does not satisfy the legal standard for demonstrating Jones Act negligence as set forth above.”  Here, the jury must determine whether the dangerous condition was caused by the State’s negligence, or whether, as the State argued, Plaintiff caused the dangerous condition herself.

Thibodeaux v. State, DOTD, 13-893 (La. App. 3 Cir. 3/12/14); — So. 3d —-.

Happy Mardi Gras! Laissez Les Bons Temps Rouler!

Today is Fat Tuesday!  If you have not been to New Orleans for Mardi Gras, you should put the trip on your bucket list.  It is a time of camaraderie, revelry and carousal.  There are weeks of parades, but the biggest parades start the Thursday before Mardi Gras.  There are family areas for the parades as well as not-so-family areas.  There are king cakes, costumes, and coconuts.  There are beads, doubloons, and shoes.

I think Chris Rose described Mardi Gras in great fashion in his book 1 Dead in Attic:

To encapsulate the notion of Mardi Gras as nothing more than a big drunk is to take the simple and stupid way out, and I, for one, am getting tired of staying stuck on simple and stupid.

Mardi Gras is not a parade.  Mardi Gras is not girls flashing on French Quarter balconies.  Mardi Gras is not an alcoholic binge.

Mardi Gras is bars and restaurants changing out all the CD’s in their jukeboxes to Professor Longhair and the Neville Brothers, and it is annual front-porch crawfish boils hours before the parades so your stomach and attitude reach a state of grace, and it is returning to the same street corner, year after year, and standing next to the same people, year after year–people whose names you may or may not even know but you’ve watched their kids grow up in this public tableau and when they’re not there, you wonder:  Where are those guys this year?

It is dressing your dog in a stupid costume and cheering when the marching bands go crazy and clapping and saluting the military bands when they crisply snap to.

Now that part, more than ever.

It’s mad piano professors converging on our city from all over the world and banging the 88′s until dawn and laughing at the hairy-shouldered men in dresses too tight and stalking the Indians under Claiborne overpass and thrilling the years you find them and lamenting the years you don’t and promising yourself you will next year.

It’s wearing frightful color combination in public and rolling your eyes at the guy in your office who–like clockwork, year after year–denies that he got the baby in the king cake and now someone else has to pony up the ten bucks for the next one.

Mardi Gras is the love of life.  It is the harmonic convergence of our food, our music, our creativity, our eccentricity, our neighborhoods, and our joy of living.  All at once.

Finally, for those of you who may be curious about the parades, I leave you with a video from the 2013 Endymion parade and a video from the 2011 Rex parade, both of which I found on YouTube.  Now, Laissez Les Bons Temps Rouler!

Krewe of Endymion:

Krewe of Rex:

Offshore Sandblaster/Painter was a Jones Act Seaman

Plaintiff worked for a company which performed both onshore and offshore sandblasting and painting.  His employer contracted with a third party to undertake the sandblasting and painting of an offshore platform.  Plaintiff and his crew worked on this project for two-and-a-half months.  During that time, Plaintiff slept and ate on board theM/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform.  Plaintiff was also injured on the vessel: he fell as he was exiting the wheelhouse.  After a trial, the jury determined that Plaintiff was a Jones Act seaman, and he awarded maintenance and cure totaling $8,580.00 and $9,754.00 respectively.

The first question presented to Louisiana’s Third Circuit was whether Plaintiff was a Jones Act seaman.  As for the legal backdrop, the court simply quoted four (4) pages of the Supreme Court’s decision in Chandris, Inc. v. Latsis, 515 U.S. 347, 368-72 (1995).  From there, the Third Circuit noted that the only evidence presented to the jury regarding Plaintiff’s seaman status was Plaintiff’s testimony.  Taken as a whole, the court found no manifest error in the jury’s finding that Plaintiff was a Jones Act seaman.

Jones v. Howard McCall, Inc., — So. 3d —- (La. App. 3 Cir. 2012).

When Does a Negligent Act Become Intentional?

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.