US: Establishing “Substantial Certainty” in Intentional Tort Cases is Difficult

Construing La. Rev. Stat. § 23:1032, which generally provides that workers’ compensation is the exclusive remedy of an employee injured within the course and scope of the employment unless the act causing the injury was an intentional act, and observing that, due to the difficulty of establishing the employer’s subjective state of mind, Louisiana state courts–and courts in about a dozen other jurisdictions–have carved out a special rule providing that if a claimant can show “substantial certainty” that the consequences followed the employer’s act, that act will be deemed to have been intentional, a federal district court in Louisiana on Tuesday nevertheless dismissed a complaint filed against an employer by a worker who sustained serious and debilitating injuries when a towing device being used to pull the worker’s forklift from the mud came loose, striking the worker in the face [Roux v. Pinnacle Polymers, L.L.C., 2014 U.S. Dist. LEXIS 4404 (E.D. La., Jan. 14, 2014)]. 

Reviewing several recent Louisiana court decisions, the federal court noted that “substantially certain” to follow required more than a reasonable probability that an injury would occur and that the intentional tort exception to the exclusive remedy provision was to be given a narrow interpretation, the federal court indicated that the plaintiff worker had not pleaded any specific facts with respect to his employer’s intent, but rather had made “mere naked assertions” that co-workers knew or should have known that the manner in which the forklift and the towing device were being used was improper. A conclusory allegation “that it was substantially certain that the towing device would fail and strike Plaintiff” was insufficient to state a proper claim.

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