Hernandez et al v. Dedicated Tcs, Llc, et al

MOTION to Dismiss for Failure to State a Claim Pursuant to Federal Rule of Civil Procedure 12

E.D. La.May 30, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOENDEL HERNANDEZ, ET AL., CIVIL ACTION Plaintiffs VERSUS NO. 16-3621 c/w 17-46 DEDICATED TCS, L.L.C., ET AL., SECTION: “E”(5) Defendants Applies to: No. 17-46 MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) Defendant, Dedicated TCS, L.L.C. (“Dedicated”), requests that this Court dismiss the First Supplemental and Amending Complaint (“First Supplemental Complaint”) [Rec. Doc. 81] filed by the Stack Plaintiffs pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court has already dismissed, in the companion Hernandez v. Dedicated case, allegations that are fundamentally similar to those made by the Stack Plaintiffs here. Moreover, the allegations made in the Stack Plaintiffs’ First Supplemental and Amended Petition (“First Supplemental Petition”) — that Dedicated employees had “cleaned out numerous latex-containing rail cars allegedly without incident”1 — show that Dedicated could never have known that it was “inevitable” that Armond Stack would be injured. Indeed, if employees had cleaned out numerous identical cars without incident, then there is no way that the Stack Plaintiffs can allege that it was “substantially certain” or “inevitable” that Mr. Stack would get injured. The Louisiana Workers’ Compensation Act (the “LWCA”) bars tort claims against employers by their employees’ decedents or dependents for injury or death on the job unless the 1 First Supplemental Petition, Rec. Doc. 81, ¶ 15.B (emphasis added). Case 2:16-cv-03621-SM-JCW Document 94 Filed 05/30/17 Page 1 of 4 2 plaintiff can prove that the employer is liable for an intentional tort.2 The facts alleged by the Stack Plaintiffs, including the allegation that Dedicated repeatedly violated OSHA regulations, do not establish an intentional tort. Under Louisiana law, an OSHA violation supports a claim for negligence, not an intentional act.3 This Court has already ruled that the allegations of Dedicated employees purportedly injured during an October 8, 2015 workplace incident did not state a valid claim for intentional tort against Dedicated sufficient to invoke the intentional act exception to the Louisiana Workers’ Compensation Act. Specifically, the Court held that the Hernandez Plaintiffs had “not sufficiently alleged that DTCS knew that the Plaintiffs’ injuries were substantially certain to follow as a result of the actions it did or did not take.”4 Therefore, according to the Court, the allegations were of the kind “Louisiana courts have found to be insufficient to establish intentional tort liability under the LWCA.”5 Because the allegations asserted by the Stack Plaintiffs are not fundamentally different from those asserted by the Hernandez Plaintiffs, the Court’s March 3, 2017 ruling applies with equal force to the Stack Plaintiffs. Even if (assuming for the sake of argument only) it is true that Plaintiffs’ damages stem from Dedicated’s intentional failure to test air quality or provide safety equipment, Plaintiffs have still not asserted a valid intentional tort claim against Dedicated. To do so, Plaintiffs must allege either that Dedicated consciously desired the results of its actions or that it was “inevitable” that Dedicated’s alleged failure to provide (for example) safety equipment would damage the Stack 2 LA. REV. STAT. § 23:1032(A), (B). See also Gauthe v. Asbestos Corp. Ltd., 97-941 (La. App. 5 Cir. 1/27/1998), 708 So. 2d 761, 762-63 (noting that the LWCA applies in the case of wrongful death suits). 3 Reeves v. Structural Pres. Sys., 98-1795 p. 9 (La. 3/12/99), 731 So. 2d 208, 212. 4 Rec. Doc. 58, p. 7. 5 Id. Case 2:16-cv-03621-SM-JCW Document 94 Filed 05/30/17 Page 2 of 4 3 Plaintiffs.6 This is because intent has “reference to the consequences of an act rather than to the act itself.”7 The Stack Plaintiffs’ own allegations belie this requirement. The Stack Plaintiffs allege that “In the months leading up to October 8, 2015, upon information and belief, DEDICATED cleaned out numerous latex-containing rail cars allegedly without incident.”8 If Dedicated employees cleaned out numerous rail cars without incident, then there is no way the Stack Plaintiffs can establish that that it was “inevitable” that Dedicated’s alleged failure to provide (for example) safety equipment would damage the Stack Plaintiffs. Because the Stack Plaintiffs have not stated a claim pursuant to which Dedicated could be liable in tort for their alleged injuries, Dedicated requests that this Court grant its motion and dismiss the Stack Plaintiffs’ claims. /s/ James M. Garner ___________________________________ JAMES M. GARNER #19589 CHRISTOPHER T. CHOCHELES#26848 EMILY E. ROSS #34739 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Telephone: 504.299.2100 Facsimile: 504.299.23100 ATTORNEYS FOR DEDICATED TCS, L.LC. 6 Id. 7 Beard v. Grey Wolf Drilling Co., 2000-00345 (La. App. 3 Cir. 11/2/00), 774 So. 2d 287, 289–90. 8 First Supplemental Petition, Rec. Doc. 81, ¶ 15.B (emphasis added). Case 2:16-cv-03621-SM-JCW Document 94 Filed 05/30/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on May 30, 2017, I electronically filed the foregoing with the clerk of the United States District Court for the Eastern District of Louisiana, using the CM/ECF system, which will automatically send a notice of electronic filing to all counsel of record. /s/ James M. Garner ______________________________ JAMES M. GARNER Case 2:16-cv-03621-SM-JCW Document 94 Filed 05/30/17 Page 4 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOENDEL HERNANDEZ, ET AL., CIVIL ACTION Plaintiffs VERSUS NO. 16-3621 c/w 17-46 DEDICATED TCS, L.L.C., ET AL., SECTION: “E”(5) Defendants Applies to: No. 17-46 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) Defendant, Dedicated TCS, L.L.C. (“Dedicated”), requests that this Court dismiss the First Supplemental and Amending Complaint (“First Supplemental Complaint”) [Rec. Doc. 81] filed by the Stack Plaintiffs pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court has already dismissed, in the companion Hernandez v. Dedicated case, allegations that are fundamentally similar to those made by the Stack Plaintiffs here. Moreover, the allegations made in the Stack Plaintiffs’ First Supplemental and Amended Petition (“First Supplemental Petition”) — that Dedicated employees had “cleaned out numerous latex-containing rail cars allegedly without incident”1 — show that Dedicated could never have known that it was “inevitable” that Armond Stack would be injured. Indeed, if employees had cleaned out numerous identical cars without incident, then there is no way that the Stack Plaintiffs can allege that it was “substantially certain” or “inevitable” that Mr. Stack would get injured. The Louisiana Workers’ Compensation Act (the “LWCA”) bars tort claims against employers by their employees’ decedents or dependents for injury or death on the job unless the 1 First Supplemental Petition, Rec. Doc. 81, ¶ 15.B (emphasis added). Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 1 of 17 2 plaintiff can prove that the employer is liable for an intentional tort.2 The facts alleged by the Stack Plaintiffs, including the allegation that Dedicated repeatedly violated OSHA regulations, do not establish an intentional tort. Under Louisiana law, an OSHA violation supports a claim for negligence, not an intentional act.3 This Court has already ruled that the allegations of Dedicated employees purportedly injured during an October 8, 2015 workplace incident did not state a valid claim for intentional tort against Dedicated sufficient to invoke the intentional act exception to the Louisiana Workers’ Compensation Act. Specifically, the Court held that the Hernandez Plaintiffs had “not sufficiently alleged that DTCS knew that the Plaintiffs’ injuries were substantially certain to follow as a result of the actions it did or did not take.”4 Therefore, according to the Court, the allegations were of the kind “Louisiana courts have found to be insufficient to establish intentional tort liability under the LWCA.”5 Because the allegations asserted by the Stack Plaintiffs are not fundamentally different from those asserted by the Hernandez Plaintiffs, the Court’s March 3, 2017 ruling applies with equal force to the Stack Plaintiffs. Even if (assuming for the sake of argument only) it is true that Plaintiffs’ damages stem from Dedicated’s intentional failure to test air quality or provide safety equipment, Plaintiffs have still not asserted a valid intentional tort claim against Dedicated. To do so, Plaintiffs must allege either that Dedicated consciously desired the results of its actions or that it was “inevitable” that Dedicated’s alleged failure to provide (for example) safety equipment would damage the Stack 2 LA. REV. STAT. § 23:1032(A), (B). See also Gauthe v. Asbestos Corp. Ltd., 97-941 (La. App. 5 Cir. 1/27/1998), 708 So. 2d 761, 762-63 (noting that the LWCA applies in the case of wrongful death suits). 3 Reeves v. Structural Pres. Sys., 98-1795 p. 9 (La. 3/12/99), 731 So. 2d 208, 212. 4 Order and Reasons, Rec. Doc. 58, p. 7. 5 Id. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 2 of 17 3 Plaintiffs.6 This is because intent has “reference to the consequences of an act rather than to the act itself.”7 The Stack Plaintiffs’ own allegations belie this requirement. The Stack Plaintiffs allege that “In the months leading up to October 8, 2015, upon information and belief, DEDICATED cleaned out numerous latex-containing rail cars allegedly without incident.”8 If Dedicated employees cleaned out numerous rail cars without incident, then there is no way the Stack Plaintiffs can establish that that it was “inevitable” that Dedicated’s alleged failure to provide (for example) safety equipment would damage the Stack Plaintiffs. Because the Stack Plaintiffs have not stated a claim pursuant to which Dedicated could be liable in tort for their alleged injuries, Dedicated requests that this Court grant its motion and dismiss the Stack Plaintiffs’ claims. I. Background The Stack Plaintiffs’ Petition and First Supplemental Petition alleges that on or about October 8, 2015, Armond Stack was an employee of Dedicated and “assigned to clean a tank car at Dedicated and/or Bulk Resources’ facility located at 7501 Terminal Road in the Port of New Orleans.”9 The Stack Plaintiffs further allege that the tank car contained hazardous and/or toxic chemical vapors and that Dedicated did not test the air quality or provide Stack with a breathing apparatus before he entered the car.10 The Stack Plaintiffs further allege that Stack “lost consciousness immediately after entering the tank car as a direct result of the exposure to 6 Id. 7 Beard v. Grey Wolf Drilling Co., 2000-00345 (La. App. 3 Cir. 11/2/00), 774 So. 2d 287, 289–90. 8 First Supplemental Petition, Rec. Doc. 81, ¶ 15.B (emphasis added). 9 See Petition, Rec. Doc. 1-2 of Case No. 17-46, ¶ 5. 10 Id. ¶ ¶ 6, 7. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 3 of 17 4 hazardous vapors in the tank and the lack of oxygen.”11 The Stack Plaintiffs allege that Stack died soon after losing consciousness.12 As against Dedicated, the Stack Plaintiffs allege that Dedicated engaged in “intentional” conduct, including failure to “test the air quality,” and failure to provide respiratory protection equipment to Stack, among other allegations.13 The Stack Plaintiffs contend that Dedicated’s intentional conduct is evidenced by the results of an investigation performed by the Occupational Safety and Health Administration (“OSHA”), which purportedly found that the incident was caused by the intentional acts of Dedicated.14 In their First Supplemental Petition, the Stack Plaintiffs rely on documents produced by Dedicated as part of the OSHA investigation into this incident to provide more detail to their allegations. The Stack Plaintiffs include further allegations that Dedicated knew the requirements for confined spaces and were cited by OSHA for violations of same.15 The Stack Plaintiffs further allege that specific individuals at Dedicated’s facility were involved in the prior OSHA violations.16 The Stack Plaintiffs also allege, however, that “In the months leading up to October 8, 2015, upon information and belief, DEDICATED cleaned out numerous latex-containing rail cars allegedly without incident.”17 11 Id. ¶ 8. 12 Id., ¶ 9. 13 Id., ¶ ¶ 10-14. 14 See id. ¶10. 15 See First Supplemental Petition, Rec. Doc. 81, ¶¶ 10.A - 10.H. 16 Id. ¶¶ 10.H - 10.J. 17 Id. ¶ 15.B. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 4 of 17 5 II. Law and Argument A. Motion to Dismiss Burden of Proof Federal Rule of Civil Procedure 12(b)(6) requires a court to dismiss a complaint that “fails to state a claim upon which relief can be granted.”18 The court must determine if “there are sufficient factual allegations to make the complaint’s claim plausible.”19 To establish facial plausibility, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”20 The plaintiff must identify, therefore, both a cognizable legal theory and specific, non- speculative factual allegations to support its claim.21 Moreover, where “‘a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.’”22 Further, Louisiana law applies to this case as it is a “long-recognized principle that federal courts sitting in diversity ‘apply state substantive law and federal procedural law.’”23 B. This Court has already decided this issue and dismissed another Dedicated employee’s claims against Dedicated with prejudice. This Court has decided this exact issue already in a related case that has been consolidated with this case, Hernandez v. Dedicated, et al., Civil Action No. 2:16-cv-03621. The Court granted 18 FED. R. CIV. P. 12(b)(6). 19 In re Pool Prods. Distrib. Mkt. Antitrust Litig., 988 F. Supp. 2d 696, 713 (E.D. La. 2013); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009). 20 Twombly, 550 U.S. at 555. 21 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 at 544-48 (3d ed. 2004). 22 General Cable Indus., Inc. v. Zurn Pex, Inc., 561 F. Supp. 2d 653, 658 (E.D. Tex. 2006) (quoting McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39, 43 (6th Cir. 1988)) (other quotations omitted). 23 Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1985)). Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 5 of 17 6 Dedicated’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and dismissed the Hernandez Plaintiffs’ claims because the plaintiffs had “not sufficiently alleged that DTCS knew that the Plaintiffs’ injuries were substantially certain to follow as a result of the actions it did or did not take.”24 Therefore, according to the Court, the allegations were of the kind “Louisiana courts have found to be insufficient to establish intentional tort liability under the LWCA.”25 This case arises out of the exact same set of circumstances as the Hernandez Plaintiffs’ claims and the allegations are nearly identical.26 This Court’s rationale with regard to the Hernandez Plaintiffs applies equally to this action. Relying upon documents produced by Dedicated in connection with OSHA’s investigation into the incident at issue in this case, the Stack Plaintiffs provide more detail to their intentional tort allegations; but the allegations themselves have the same flaws as those in Hernandez. The Stack Plaintiffs cannot fashion any allegations that would support an intentional tort where none exists. Dedicated respectfully requests that this Court reach the same result as it did with respect to the Hernandez Plaintiffs and find that the Stack Plaintiffs have not validly alleged that Dedicated committed an intentional act, thereby subjecting the plaintiffs’ claims to the Louisiana Workers’ Compensation Act. Dedicated respectfully requests this Court grant its Motion to Dismiss and dismiss the Stack Plaintiffs’ claims against it with prejudice. 24 Order and Reasons, Rec. Doc. 58, p. 7. 25 Id. 26 Compare Rec. Doc. 1-2, ⁋⁋ 10-15 in Civil Action No. 17-46 with Rec. Doc. 1, ⁋⁋ V-IX, Rec. Doc. 32, ⁋⁋ XIV – XVI, Rec. Doc. 61, ⁋⁋ XVII – XXI. The Stack Plaintiffs’ allegations are more detailed, with supporting documentation, but the backbone of the allegations remains the fact that Dedicated has prior OSHA violations. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 6 of 17 7 C. The Stack Plaintiffs have failed to establish that Stack’s death is the result of intentional conduct by Dedicated and thus they have failed to state a claim upon which relief can be granted. Under Louisiana law, the exclusive remedy for an employee who is injured while in the course of his employment is worker’s compensation, unless the employee can prove that the injury is the result of the employer’s “intentional act.”27 The Louisiana Supreme Court has held that “intentional act” in this context means “intentional tort.” 28 An act is “intentional” if the employer either desired the consequences of his acts or omissions, or believed the consequences were substantially certain to result.29 “Substantially certain to result” requires that the employer had “knowledge to a virtual certainty,” that an injury would occur. The injury must have been “inevitable.”30 Mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.31 An employer’s gross negligence, disregard of safety regulations, or failure to use safety equipment is likewise insufficient to constitute an intentional act for defeating the exclusive remedy of worker’s compensation.32 Rather, in order for an injured employee to recover in tort, the employer's conduct must go beyond acts such as knowingly permitting a hazardous work condition to exist, 27 LA. REV. STAT. §§ 23:1032(A), (B) (1990). 28 Bazely v. Tortorich, 397 So. 2d 475, 482 (La. 1981). 29 Id. 30 Reeves v. Structural Pres. Sys., 98-1795 p. 9 (La. 3/12/99), 731 So. 2d 208, 212 (citing Jasmin v. HNV Cent. Riverfront Corp., 94-1497 p. 2 (La. App. 4 Cir. 8/30/94), 642 So. 2d 311, 312)). 31 Reeves, 731 So. 2d at 213. 32 Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So. 2d 806, 808 (La. Ct. App. 4 Cir. 1991). The court in Reeves also stated “[the employer’s belief] 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 falls within the range of negligent acts encompassed by workers’ compensation. Id. at 212 (emphasis added). Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 7 of 17 8 ordering an employee to perform an extremely dangerous job, or willfully failing to furnish a safe place to work.33 Against Dedicated, the Stack Plaintiffs allege that Dedicated engaged in a series of failures which led to Stack’s death, including failure to ensure that employees were provided with and fitted for respiratory protection, failure to implement certain programs, engaging in a pattern of deliberately failing to test the air quality of a tank car, among other allegations.34 The Stack Plaintiffs further allege that repeated OSHA violations are evidence of Dedicated’s intentional acts. The Stack Plaintiffs allege in their First Supplemental Complaint that Dedicated knew the requirements for confined spaces and were cited by OSHA for violations of same.35 The Stack Plaintiffs further allege that specific individuals at Dedicated’s facility were involved in the prior OSHA violations.36 Even taking the above allegations as true, Plaintiffs have no cause of action because the Stack Plaintiffs acknowledge that, even with the alleged defects in Dedicated’s safety program, Dedicated employees cleaned the rail cars repeatedly without incident. This allegation by itself entitles Dedicated to a dismissal because it establishes that the Stack Plaintiffs have no cause of action for an intentional tort because they cannot prove that it was inevitable that any injury would occur. In Williams v. Gervais F. Favrot Co., the Louisiana Fourth Circuit Court of Appeal specified acts that were insufficient to constitute an intentional tort, including “[a]llegations of 33 Tapia, 590 So. 2d at 808 (citing Williams v. Gervais F. Favrot Co., Inc., 573 So. 2d 533, 541 (La. Ct. App. 4 Cir. 1991)). 34 See Petition, Rec. Doc. 1-2, ¶¶ 10-14. 35 See First Supplemental Petition, Rec. Doc. 81, ¶¶ 10.A - 10.H. 36 Id. ¶¶ 10.H - 10.J. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 8 of 17 9 deficiently designed machinery and disregarding OSHA safety provisions”;37 “[t]he allegation that an employee's death could be reasonably anticipated does not state a cause of action under the exception;”38 “[a]llegations of failure to prepare or to use safety devices or failure to comply with regulations are not sufficient;”39 and a “general contractor's failure to take proper safety measures when work was in close proximity to energized wires (a carpenter was electrocuted) was not considered an intentional act.”40 The Stack Plaintiffs’ allegations here are no different than those that Louisiana courts have already held are insufficient to constitute an intentional tort. The court in Williams also stated that the Supreme Court has found an intentional tort only in “isolated” cases, including situations where the traditional intentional tort of battery was committed.41 Indeed, “[m]ost Louisiana cases fall within ‘gross negligence’ where the conduct falls far short of knowledge to a substantial certainty of harmful consequences.”42 Louisiana appellate courts have “consistently restricted a plaintiff worker to compensation.”43 Moreover, “[j]udicial broadening of the intentional tort concept would do serious damage to the exclusivity of the Compensation Act.”44 Here, the Stack Plaintiffs simply cannot establish any facts that would fall under the intentional act exception sufficient to warrant denying Dedicated’s Motion to Dismiss. 37 Id. (citing Cortez v. Hooker Chemical and Plastics Corporation, 402 So.2d 249 (La. App. 4 Cir.1981)). 38 Williams, 573 So. 2d at 541 (citing Reagan v. Olinkraft, 408 So.2d 937, 940 (La. App. 2 Cir.1981)). 39 Williams, 573 So. 2d at 541 (citing Erwin v. Excello Corporation, 387 So.2d 1288 (La. App. 1 Cir.1980)). 40 Williams, 573 So. 2d at 541 (citing Snow, 492 So.2d at 31). 41 Williams, 573 So. 2d at 542 (citing Caudle v. Betts, 512 So.2d 389 (La.1987)). 42 Williams, 573 So. 2d at 542. 43 Id. 44 Id. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 9 of 17 10 1. Dedicated’s alleged failure to follow OSHA regulations is an act of negligence and insufficient to support an intentional act exception. The Stack Plaintiffs contend that OHSA’s citation of Dedicated is evidence of intentional acts by Dedicated that resulted in Stack’s death.45 Specifically, the Stack Plaintiffs point to Dedicated’s failure to test the air quality of the tank and failure to provide certain safety equipment as intentional acts by Dedicated that caused the plaintiffs to suffer injury.46 Louisiana law is clear, however, that even when employers intentionally violate OSHA regulations, such violations constitute negligence covered by workers’ compensation. OSHA violations alone are insufficient to trigger the intentional act exception.47 For example, in Hirst v. Thieneman, the Louisiana Court of Appeal for the Fourth Circuit held that the employer’s disregarding a known safety risk in violation of OSHA guidelines did not rise beyond “gross negligence” to constitute an intentional act for purposes of the intentional act exception.48 In Hirst, the employee was electrocuted and killed when the crane cable he was guiding as part of a larger operation struck a high voltage powerline overhead.49 The facts established that the site foreman had observed and commented on the power line’s potential danger only moments prior to the accident; however, no steps were taken to remedy the situation.50 The 45 See id., ¶ 10. 46 See id. 47 See Reeves, 731 So. 2d at 211-212 (“[Louisiana’s] courts of appeal have… have almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment,” and holding that employer’s violations of OSHA guidelines do not meet the “strict requirements” of the exception.); see also Gray v. McInnis Bros. Const., 569 So. 2d 656, 658 (La. Ct. App. 1990) (holding that intentional OSHA violations were insufficient for intentional act exception where plaintiff failed to allege and specifically denied anyone intentionally caused him to be injured or desired his injury.) 48 Hirst v. Thieneman, 2005-0224 p. 6 (La. App. 4 Cir. 4/7/05), 901 So. 2d 578, 582. 49 Id. at 579. 50 Id. at 580, 579. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 10 of 17 11 family of the deceased employee attempted to use the employer’s OSHA violation — citing the employer for operating the crane so closely to an energized electrical transmission line without insulating barriers to prevent contact with the line — as evidence of an intentional act by the employer that caused the employee’s harm.51 The court pointed out that while such acts amount to gross negligence, absent proof that the employer intended to harm the plaintiff, “Louisiana’s jurisprudence is clear that allegations…involving violations of OSHA standards…do not constitute an intentional act or meet the substantial certainty test.”52 In support of its reasoning, the Hirst court cited the Louisiana Supreme Court’s decision in Reeves, where the substantial certainty test was not satisfied even when the supervisor ordered the plaintiff to accomplish a task that he feared could be dangerous and which violated applicable OSHA guidelines.53 The court in Hirst reasoned that although the foreman similarly was aware of the potential for injury, and although their conduct constituted an OSHA violation, the plaintiff, like the plaintiff in Reeves, failed to show that the employer intended to cause the plaintiff harm or knew that it was substantially certain the conduct would inevitably result in the plaintiff’s injury.54 The Stack Plaintiffs here have similarly failed to allege that Dedicated either desired to harm Stack by its acts or omissions, or believed that Stack’s death was substantially certain to result from its conduct.55 Similar to the employer in Hirst, Dedicated’s OSHA violation is 51 Id. at 580. 52 Id. at 582. 53 Id. at 583 (discussing Reeves, 731 So. 2d at 212-13.) 54 Id. 55 Plaintiffs allege that Dedicated’s intentional acts were the cause of Stack’s death, not that Dedicated intended for Stack’s death to occur, or that Stack’s death was the inevitable consequences of Dedicated’s conduct. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 11 of 17 12 insufficient to support a cause of action for intentional conduct given that the Stack Plaintiffs do not allege that Dedicated acted with the desire to harm Stack, or with substantial certainty that Stack’s death was inevitable.56 Therefore, the Stack Plaintiffs’ assertions that Dedicated violated OSHA guidelines fail to satisfy the requirements of the intentional act exception of Louisiana Revised Statutes §23:1032(B), and their recovery should be limited to the remedy provided by workers’ compensation. 2. Dedicated’s alleged failure to monitor air quality is a negligent, rather than intentional, act. The Stack Plaintiffs’ allegation that Dedicated “failed to provide” Stack with a breathing apparatus to ensure his ability to breathe inside the tanker car also falls under the category of negligence, and is encompassed in worker’s compensation. Louisiana jurisprudence classifies an employer’s failure to provide a safe place to work or correct unsafe working conditions as within the scope of negligent acts encompassed by workers’ compensation.57 Absent proof that Dedicated desired to harm Stack or acted with substantial certainty that such harm was inevitable, Dedicated’s alleged failure to monitor the air quality of the tanks is an act of negligence that, pursuant to the LWCA, does not entitle the Stack Plaintiffs to sue Dedicated in tort. For example, in Hardy v. Ducote, plaintiffs sued under the intentional act exception to workers compensation, alleging that they were exposed to “extremely high” levels of lead and other toxic substances while working at a recycling plant owned by the defendants.58 The plaintiffs also alleged that the dangers associated with such hazardous workplace conditions were concealed 56 See Petition, Rec. Doc. 1-2, ¶¶10-14. 57 See Jasmin v. HNV Cent. Riverfront Corp., 94-1497 (La. App. 4 Cir. 8/30/94), 642 So. 2d 311, 316; Guillory v. Olin Corp., 99-567 (La. App. 3 Cir. 10/13/99), 745 So. 2d 713, 716, writ denied, 1999-3600 (La. 2/18/00), 754 So. 2d 968; Simoneaux v. Excel Grp., LLC, 2006-1050 (La. 9/1/06), 936 So. 2d 1246, 1248. 58 Hardy v. Ducote, 246 F. Supp. 2d 509, 510 (W.D. La. 2003). Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 12 of 17 13 from both the plaintiffs and regulatory agencies, and that the defendants refused to provide the plaintiffs with safety equipment.59 In that case, the court catalogued the acts that, as classified by Louisiana jurisprudence, did not rise to the level of an “intentional act” that would enable an employee to sue his employer in tort – failure to provide a safe place to work,60 failure to provide requested safety equipment,61 and failure to correct unsafe working conditions.62 Thus, the court found the plaintiffs’ allegations that defendant’s failed to provide a safe working environment did not satisfy either the “consciously desire,” or “substantially certain” test.63 Here, the Stack Plaintiffs similarly allege that the intentional act exception should apply to their case by asserting that Dedicated intentionally failed to monitor the air quality and caused their injury by failing to provide a safe place to work.64 Louisiana jurisprudence has consistently held, however, that while such a failure may be wanton, reckless, careless, or even grossly negligent, the intentional act exception only applies when the employer acts with the desire to harm the employee or when the employer knows its conduct is substantially certain to result in harm.65 Therefore, like the plaintiffs in Hardy, the Stack Plaintiffs in this case fail to allege either that Dedicated “consciously desired” the result or that the result was “substantially certain.” 59 Id. at 512. 60 Id. at 515 (citing Hood v. South Louisiana Med. Ctr., 517 So. 2d 469, 471 (La. App. 1 Cir. 1987)). 61 Id. (citing Jacobsen v. Southeast Distribs., Inc., 413 So. 2d 995, 997–98 (La. App. 4 Cir. 1982), writ denied, 415 So.2d 953 (La.1982)). 62 Id. (citing Dycus v. Martin Marietta Corp., 568 So. 2d 592, 594 (La. App. 4 Cir. 1990), writ denied, 571 So. 2d 649 (La. 1990)). 63 Id. 64 See Petition, Rec. Doc. 1-2, ¶¶ 10-14. 65 Hardy, 246 F. Supp. 2d 509 at 515. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 13 of 17 14 “Substantially certain” requires that the injury was “inevitable.”66 Indeed, the Stack Plaintiffs have acknowledged that Stack’s injuries could not have been “inevitable” because they allege that “[i]n the months leading up to October 8, 2015, upon information and belief, DEDICATED cleaned out numerous latex-containing rail cars allegedly without incident.”67 If Dedicated employees cleaned out numerous rail cars without incident, then this particular incident could not have been inevitable or substantially certain. The Stack Plaintiffs’ remedy is, therefore, limited to worker’s compensation. 3. Dedicated’s alleged failure to provide requested safety equipment is insufficient to satisfy the intentional act exception. The Stack Plaintiffs’ allegation that Dedicated failed to provide safety equipment is likewise insufficient to demonstrate the intent required for the intentional act exception according to Louisiana jurisprudence. In Jacobson v. Southeast Distributors, Inc., for example, the plaintiff sued his employer under the intentional act exception to recover in tort for injuries he sustained when he fell from a “swinging stage” platform while working on a hotel exterior.68 The plaintiff alleged that on his first day of the job, he requested a safety line and other precautionary safety equipment to catch him in the event of a fall.69 However, the employer allegedly denied the requested equipment on the grounds that supplying the precautionary safety equipment would have been overly time-consuming.70 66 Reeves v. Structural Pres. Sys., 98-1795 p. 9 (La. 3/12/99), 731 So. 2d 208, 212 (citing Jasmin v. HNV Cent. Riverfront Corp., 94-1497 p. 2 (La. App. 4 Cir. 8/30/94), 642 So. 2d 311, 312)). 67 Id. ¶ 15.B (emphasis added). 68 Jacobsen, 413 So. 2d at 996. 69 Id. 70 Id. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 14 of 17 15 The plaintiff asserted that the employer’s refusal to supply the requested safety equipment was an intentional act that led to his injuries and that should permit him to recover in tort.71 The appellate court reversed the trial court’s decision and found that the plaintiff had not offered “one scintilla” of evidence to indicate that the employer intended for the plaintiff to sustain his injuries or that the employer was substantially certain that the injuries would inevitably occur.72 The court noted the employer’s testimony, which indicated that it was reasonable to assume that an accident on the job site was probable, and that someone could be injured as a result.73 Although the court associated a degree of fault with the employer’s conduct, the court found that the requisite intent to allow the plaintiff to sue in tort was lacking.74 Because the court concluded that the employer’s conduct was not intentional, it limited the plaintiff to the remedy provided by the LWCA.75 Similarly, the Stack Plaintiffs here have not made any allegation that Dedicated intended for their injuries to occur, or that Dedicated was substantially certain that Stack’s death would occur without the requested equipment. In fact, the Stack Plaintiffs have acknowledged that they cannot establish that Stack’s injuries were intentional or inevitable because they allege that “[i]n the months leading up to October 8, 2015, upon information and belief, DEDICATED cleaned out numerous latex-containing rail cars allegedly without incident.”76 Therefore, the Stack Plaintiffs 71 Id. 72 Id. at 998. 73 Id. 74 Id. 75 Id. at 998. 76 First Supplemental Petition, ¶ 15.B (emphasis added). Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 15 of 17 16 have failed to state a claim in tort against Dedicated, and are likewise limited in remedy to worker’s compensation. D. Conclusion The LWCA does not permit injured employees to recover in tort against their employer unless they allege that they were injured by an “intentional act,” i.e., the “intentional tort,” of Dedicated. Even reckless conduct or gross negligence by the employer is insufficient to show that the employer intended for the employee to be harmed. Moreover, Louisiana jurisprudence is clear that violations of OSHA, failure to provide a safe work environment, and failure to provide requested safety equipment are negligent, rather than intentional, acts. Plaintiffs have failed to allege that Dedicated desired to harm Stack or cause his death or that Dedicated was substantially certain that such harm and death would result from their conduct. Thus, Plaintiffs have not alleged a claim on which the requested relief could be granted, and are limited in recovery to workers’ compensation. Dedicated respectfully requests this Court grant its Motion to Dismiss and dismiss Plaintiffs’ claims against it with prejudice. Respectfully submitted, /s/ James M. Garner ___________________________________ JAMES M. GARNER #19589 CHRISTOPHER T. CHOCHELES#26848 EMILY E. ROSS #34739 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Telephone: 504.299.2100 Facsimile: 504.299.23100 ATTORNEYS FOR DEDICATED TCS, L.LC. Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 16 of 17 17 CERTIFICATE OF SERVICE I hereby certify that on May 30, 2017, I electronically filed the foregoing with the clerk of the United States District Court for the Eastern District of Louisiana, using the CM/ECF system, which will automatically send a notice of electronic filing to all counsel of record. /s/ James M. Garner ______________________________ JAMES M. GARNER Case 2:16-cv-03621-SM-JCW Document 94-1 Filed 05/30/17 Page 17 of 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOENDEL HERNANDEZ, ET AL., CIVIL ACTION Plaintiffs VERSUS NO. 16-3621 c/w 17-46 DEDICATED TCS, L.L.C., ET AL., SECTION: “E”(5) Defendants Applies to: No. 17-46 NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Defendant Dedicated TCS, L.L.C. will bring its Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) before the Honorable Susie Morgan at the United States District Courthouse, 500 Poydras Street, New Orleans, Louisiana 70130, on June 14, 2017, at 10 a.m. /s/ James M. Garner ___________________________________ JAMES M. GARNER #19589 CHRISTOPHER T. CHOCHELES#26848 EMILY E. ROSS #34739 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Telephone: 504.299.2100 Facsimile: 504.299.23100 ATTORNEYS FOR BULK RESOURCES LOUISIANA/LLC and BULK RESOURCES, INC. Case 2:16-cv-03621-SM-JCW Document 94-2 Filed 05/30/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that on May 30, 2017, I electronically filed the foregoing with the clerk of the United States District Court for the Eastern District of Louisiana, using the CM/ECF system, which will automatically send a notice of electronic filing to all counsel of record. /s/ James M. Garner ______________________________ JAMES M. GARNER Case 2:16-cv-03621-SM-JCW Document 94-2 Filed 05/30/17 Page 2 of 2