When Is A Negligent Act Intentional?

On June 12, 2009, two steelworkers, Ulvaldo Martinez and Martin Reyes, were killed when a steel reinforcing bar cage collapsed during the widening of the Huey P. Long Bridge. They were part of a crew that was responsible for constructing the rebar cage and securing it in place on top of a 60-foot-high footing that had been built to support one of the bridge columns. The rebar cage was raised by a crane and placed on top of the column footing that had been erected days prior to the collapse of the cage. Once the cage was in place Martinez and Reyes, employees of J.L. Steel, were instructed to unhook the crane from the top of the cage. Within thirty minutes of the removal of the crane the cage collapsed and the two workers fell to their deaths.

Martinez’s widow filed suit against KMTC, the company contracted by the Louisiana Department of Transportation and Development, to serve as the general contractor on the project. She alleged that her husband’s death was the direct result of KMTC’s negligence and intentional acts. KMTC had contracted with J.L. Steel to assemble and install the rebar cage. Prior to trial the court found that KMTC exercised sufficient control over Martinez and Reyes so that it was their “statutory employer”. Generally the law provides that when a business undertakes work that is part of its trade, business or occupation, and contracts with another business to execute either all or part of that work, then the first business is considered to be the statutory employer of the employees of the second business. This finding was significant because the Louisiana Workers’ Compensation Act is the employee’s exclusive remedy for a work-related injury or death caused by his employer or co-worker. Louisiana Revised Statue 23:1032(B) provides for the intentional act exception, as follows: “Nothing in this Chapter shall affect the liability of the employer…, civil or criminal, resulting from an intentional act.” Thus unless the judge or jury finds that the negligence of the employer rises to the level of intentional, the injured worker cannot sue his employer for damages. He is limited to his worker’s compensation remedies. After an eight-day trial the jury found that KMTC was negligent, that its negligence was intentional, and awarded $13 million in damages. KMTC appealed.

To succeed, the worker must show that the egregious conduct is “truly intentional”. The burden of proof is heavy. The Court of Appeal noted that where the employer’s conduct goes beyond aggravated negligence and includes an employer who knowingly permits a hazardous work condition to exist or knowingly orders a claimant to perform an extremely dangerous job or willfully fails to furnish a safe place to work, this still falls short of the kind of intention to injure that rises to the level of intentional act. The Louisiana Supreme Court has held that “intent” is found when the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Conduct that may be considered “stupid” and/or “dangerous”, but that does not necessarily elevate the conduct to “intentional”. The exception is strictly interpreted. For an act to be “intentional” the actor must be substantially certain that the harm will follow. It requires more than a reasonable probability that an injury will occur, and “certain” is defined as inevitable or incapable of failing. Various courts have held that an employer’s knowledge that a machine is dangerous and creates a high probability that someone may be injured, or that knowledge and appreciation of risk, do not constitute intent; reckless or wanton conduct by an employer does not constitute intentional wrongdoing. Even violation of OSHA standards is not an adequate basis for finding that the employer knew to a “substantial certainty” that it conduct would cause injury or death.

The Court of Appeal reversed the jury’s decision. The plaintiff introduced evidence that two prior rebar cages had leaned during their installation and that KMTC should have reasonably known that this third cage presented a clear danger and threat to life. While there was conflicting evidence of whether the prior cages in fact leaned, the Court found that even if true, the evidence did not suffice to prove that KMTC knew that the accident was substantially certain to follow. The Court ruled that plaintiff’s exclusive remedy against KMTC was pursuant to the Louisiana Workers’ Compensation Act.

This is a wide-ranging decision. The Court of Appeal addressed a number of other issues including computation of damages to which survivors of a decedent may be entitled, the value of pre-death pain and suffering, claims for “bystander” damages, and a number of evidentiary rulings. This is a case worthy of reading and may be found at the website for the Louisiana Court of Appeal, First Circuit, Maldonado vs. Kiewit Louisiana, et al, 2012-CA-1868, May 30, 2014.

Will E. Bland, III