Opinion
No. 2020-CC-00493
06-22-2020
In re: Jerome MATTHEWS and Elton Barber Vs. Phillip, et al. v. TURNER INDUSTRIES GROUP, L.L.P., et al.
JOHNSON, C.J., would grant the writ and assigns reasons.
This suit involves an industrial accident at the Phillips 66 Company Alliance Refinery in Belle Chasse, Louisiana, which resulted in the death of Jerome Matthews and injuries to Elton Barber for having witnessed Mr. Matthews’ death. Tort actions were filed against Phillips 66 and the direct employer, Hydrochem PSC LLC. The district court sustained defendants’ exceptions of no cause of action and no right of action, finding plaintiffs were statutory employees of Phillips 66 and finding plaintiffs failed to allege sufficient facts to establish an intentional tort against either employer.
Generally, workers’ compensation is an employee's exclusive remedy for work-related injuries. La. R.S. 23:1032. However, there is no workers’ compensation immunity for a tort which is "intentional." La. R.S. 23:1032(B) ; Cole v. State Dep't of Pub. Safety & Corr ., 01-2123 (La. 9/4/02), 825 So. 2d 1134, 1138. 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. Cole , 825 So. 2d at 1140 ; Bazley v. Tortorich , 397 So. 2d 475, 481 (La.1981) (Emphasis added).
According to plaintiffs, defendants made a deliberate decision to omit common sense safety precautions—required by OSHA —and then operate for several weeks without these safety precautions under circumstances which made it substantially certain that death or serious injury would occur, with the only uncertainty being how long would it take for an accident to happen. The district court noted plaintiffs’ allegations that plant safety lighting was turned off, walking surfaces were caked in slippery oily fluids, and hard barriers, railings and grates were missing. Yet the district court founds these allegations insufficient to state a cause of action for intentional tort, noting the "substantially certain to follow" element requires more than a reasonable probability that the injury will occur. I disagree.
In Reeves v. Structural Pres. Sys ., 98-1795 (La. 3/12/99), 731 So. 2d 208, the majority of this court applied a very narrow construction to the intentional act exception, holding that the fact that OSHA guidelines prohibited the employer's actions did not meet the strict requirements of the intentional act exception. I dissented in Reeves , noting the majority opinion would essentially require another employee to have been previously injured due to the improper workplace practices of the employer to meet the "substantially certain" test. Id . at 215 (Johnson, J., dissenting). Here, as in Reeves , where the employers deliberately took actions in violation of OSHA safety standards, I would find plaintiffs alleged facts sufficient to establish defendants’ actions constituted an intentional tort. Plaintiffs should be allowed to proceed with their tort suits against the employers.