Clark v. Division Seven, Inc.
2000 La. App. LEXIS 3433, 99 La.App. 4 Cir. 3079, 776 So. 2d 1262 (2000)
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Rule of Law:
An employer's action constitutes an "intentional act," creating an exception to the workers' compensation exclusivity rule, when the employer knowingly compels an employee to work under conditions where injury is "substantially certain" or inevitable, particularly after a near-identical accident has just demonstrated the imminent peril.
Facts:
- On February 15, 1995, Gary Clark and his co-worker, Robert Naquin, were performing roofing work for their employer, Division Seven, Inc., on a slanted church roof approximately three stories high.
- Their foreman, Sandroz Ray, supervised the job during intermittent rain showers.
- Ray repeatedly ordered Clark and Naquin to return to the roof after heavy rain, despite their protests that the surface was dangerously wet and slippery.
- Ray threatened to fire the men if they refused to continue working.
- While on the roof, Naquin slipped and nearly fell to the ground, only saving himself by grabbing a wooden block at the roof's edge.
- Immediately after Naquin's near-fall, Ray again demanded that both men return to work or be fired.
- Naquin chose to be fired and left the worksite, but Clark remained and continued his work.
- Shortly thereafter, Clark slipped on the wet roof and fell to the ground, sustaining serious injuries.
Procedural Posture:
- Gary Clark (plaintiff) filed a petition for damages against Division Seven, Inc. (defendant) in a Louisiana trial court.
- Division Seven, Inc. filed an answer asserting that the Louisiana Workers' Compensation Act was Clark's exclusive remedy.
- By agreement, the trial was bifurcated, separating the issue of liability from the issue of damages.
- Following a trial on the liability phase, the trial court judge rendered judgment in favor of Clark, finding the employer's conduct constituted an intentional act.
- Division Seven, Inc. (appellant) appealed the trial court's liability judgment to the Court of Appeal of Louisiana, Fourth Circuit, with Gary Clark as the appellee.
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Issue:
Does an employer's act of ordering an employee, under threat of termination, to work on a wet and slippery slanted roof immediately after a co-worker had a near-fatal fall under the same conditions constitute an "intentional act" under the exception to the Louisiana Workers' Compensation Act's exclusivity provision?
Opinions:
Majority - Kirby, J.
Yes. The employer's conduct constituted an intentional act because the resulting injury to the employee was substantially certain to occur. The Louisiana Workers' Compensation Act provides an exclusive remedy for workplace injuries unless the injury resulted from an "intentional act." Citing Bazley v. Tortorich, the court defines an intentional act as one where the defendant either desired the physical results or believed they were "substantially certain" to follow. The court notes that "substantially certain" is a high standard, equivalent to "inevitable" or "virtually sure," and is more than gross negligence. Here, the foreman, Sandroz Ray, was repeatedly warned of the danger, and he personally witnessed a co-worker's near-fatal fall caused by the very same hazard. By then ordering Clark to return to the wet, slippery roof under threat of termination, Ray's conduct made Clark's injury "inevitable or substantially certain to occur," thus meeting the high threshold for the intentional act exception.
Analysis:
This decision reinforces the high but not insurmountable standard for the "substantially certain" prong of the intentional act exception to workers' compensation exclusivity in Louisiana. It clarifies that an employer's knowledge of a generalized risk is insufficient; liability attaches when the employer is aware of an immediate, specific, and demonstrated peril (the co-worker's near-fall) and coerces an employee to face that same peril. The ruling provides a crucial precedent for distinguishing between gross negligence, which is covered by workers' compensation, and an intentional tort. Future cases will likely use this fact pattern to argue that ignoring a "dress rehearsal" for a tragedy and forcing an employee to proceed transforms a risk into a substantial certainty.
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