Court: Louisiana Court of Appeal; March 4, 2014; Louisiana; State Appellate Court
Melanie Gardner appeals a judgment from the 42nd Judicial District Court in Louisiana, which granted summary judgment in favor of International Paper Co. (IP) and other defendants, including Zachry Industrial, Inc. and Kellogg, Brown, Root, L.L.C. (KBR). The case arises from the death of her husband, Toby Gardner, who fell into an unsecured access opening of a tank at the IP mill while repairing a valve during his employment with Zachry. The incident occurred after the tank overflowed, causing dangerous conditions including slippery whitewater and the presence of hydrogen sulfide gas.
On September 27, 2009, the tank overflowed, leading to the access lid becoming unseated. The following day, Toby Gardner and a crew were sent to diagnose a valve issue under hazardous conditions. Although the crew was aware of the slippery surface and toxic gas, no incidents occurred until Gardner approached the valve. Witnesses reported seeing the access cover flip before Gardner fell into the tank, where he later died despite rescue efforts.
KBR had a long-standing contractual relationship with IP, initially constructing the tank in 1982 and subsequently entering into maintenance contracts to ensure workplace safety, with the last contract relevant to this case covering December 2002 to December 2005. The court affirmed the summary judgment, indicating that the legal responsibility for the incident did not lie with the defendants as claimed by Gardner.
KBR entered a contract to provide and maintain necessary facilities for public and worker safety in compliance with state law and OSHA. Gardner sued multiple defendants, including KBR, alleging her husband’s death resulted from an intentional act by IP, Craft, and Zachry, which would circumvent Louisiana Workers’ Compensation Act's exclusive remedy provision. Additionally, Gardner claimed KBR was liable for a defective tank and breached its maintenance contract by not securing an access opening, as required by OSHA. IP, Craft, and Zachry sought summary judgment, arguing Gardner could not prove intentional acts causing injury. KBR also sought summary judgment based on La. R.S. 9:2772, asserting claims against it were time-barred. A lengthy discovery process ensued, leading to multiple amended petitions and extensive pre-trial documentation. The trial court ultimately granted summary judgment in favor of all defendants, finding no evidence of intentional acts by IP, Craft, or Zachry, and determining that KBR's claims were perempted due to the five-year limitation since the facility's turnover. The court also concluded KBR’s maintenance contract did not obligate them to redesign the tank and that any such claim was indistinguishable from a design defect claim. Gardner appealed this judgment. Appellate courts will review the summary judgment de novo, adhering to the same criteria used by the district court, which seeks to ensure a just, swift, and economical resolution of cases.
The movant retains the burden of proof in a motion for summary judgment, but if they will not bear this burden at trial, they need only demonstrate the absence of factual support for essential elements of the opposing party's claim. If the adverse party fails to provide sufficient factual support to meet their evidentiary burden at trial, no genuine issue of material fact exists, and the movant is entitled to summary judgment. Gardner argues that the trial court erred by not acknowledging that the conditions of the tank posed immediate risks, making injury likely when Toby Gardner was sent to work there. Typically, an employee cannot recover tort damages against an employer for workplace injuries, as workers’ compensation is the exclusive remedy unless the injury results from an intentional act. This exception is narrowly defined; gross negligence or safety violations do not qualify. To establish an intentional act, evidence must show that the employer either desired the injury or knew it was substantially certain to occur. The term "substantially certain" implies a high degree of inevitability, exceeding mere probability. Awareness of risk or reckless behavior does not constitute intentional wrongdoing. Even conduct that may exceed negligence, such as allowing hazardous conditions or assigning dangerous tasks, does not meet the threshold of intent required to circumvent workers' compensation protections.
A motion for summary judgment is appropriate for addressing a plaintiff's general injury claims stemming from an intentional tort. In this case, IP, Craft, and Zachry, as the movants, had the burden to demonstrate the absence of factual support for the essential elements of Gardner's claim. To establish an intentional act under the Louisiana Workers’ Compensation Act, Gardner needed to prove that the defendants knew an injury was substantially certain to result from directing Toby Gardner to work under hazardous conditions. Gardner failed to meet this burden.
In opposition, Gardner presented various affidavits, deposition testimony, and photographs aimed at demonstrating immediate risks of harm associated with sending an employee onto a slippery tank. Although Gardner claimed that prior incidents indicated the risks were evident, the evidence did not support that the defendants had knowledge that an injury was inevitable. Specifically, affidavits from Masters and Whitlock indicated that while conditions were dangerous, they were not substantially certain to lead to injury. Masters noted he had previously worked under similar conditions without incident, and Whitlock described the day's conditions as typical for that area of the plant.
Ultimately, the court concluded that the actions of IP, Craft, and Zachry, while possibly reckless or negligent, did not constitute intentional acts as defined under the law, aligning with precedents set by the Louisiana Supreme Court. The court's decision indicates that the injuries Gardner sustained were not an inevitable consequence of the work assignment.
The court emphasized the significance of prior incidents in evaluating whether the defendant was aware that an injury was substantially certain to occur. In this case, no prior incidents indicated that an injury was inevitable, as four coworkers had previously worked on the same tank without incident, and one coworker, Masters, had worked on it multiple times without injuries being reported. Consequently, Gardner could not meet her burden of proof regarding IP or its employees’ knowledge of the inevitability of the injuries. The court affirmed the trial court's grant of summary judgment for IP, Craft, and Zachry, as no material facts were in dispute.
Regarding KBR, Gardner argued that the trial court improperly ruled KBR immune from liability for maintenance responsibilities due to the expiration of the peremption period under La. R.S. 9:2772. Gardner conceded that her design defect claim against KBR was perempted, prompting the court to assess whether KBR had taken on the duty to redesign the tank to meet OSHA standards. Gardner referenced the maintenance contract that required KBR to comply with safety standards. However, the court found that the contract did not obligate KBR to redesign the tank but instead mandated adherence to existing safety regulations. Additionally, any claim regarding design defects, such as whether guardrails were necessary, was barred by the peremption period, as more than five years had passed since KBR transferred the tank to IP. Ultimately, the court affirmed the trial court's summary judgment in favor of KBR.
The conclusion confirmed that the trial court's summary judgments for International Paper Co., Mike Craft, Zachry Industrial, Inc., Kellogg, Brown, Root, L.L.C., and Kellogg, Brown, Root Services, Inc. were appropriate, with all appeal costs assigned to Melanie Gardner. The court also referenced a prior case where it upheld summary judgment against Stebbins Engineering for failing to address safety issues, citing a lack of assumed duty. Louisiana R.S. 9:2772 establishes a five-year peremptive period for tort claims related to design and construction.
