Plaintiff, an employee of Airgas-Southwest, Inc., was injured when his co-worker attempted to refill a cylinder with compressed gas because the co-worker was unaware that the cylinder was marked as defective.  Plaintiff filed suit against his employer alleging an intentional tort under La. R.S. 23:1032(B).  The district court denied the employer’s motion for summary judgment and the court of appeal denied their application for supervisory review.  The case came before the Louisiana Supreme Court on a writ of certiorari.

To prevail in an intentional tort suit involving a work related injury, a plaintiff must prove that the employer either (1) consciously desired the physical result of its act, whatever the likelihood of that result happening from its conduct, or (2) knew that the result is substantially certain to follow from its conduct, whatever its desire may be as to that result.  The Court noted that it was undisputed that plaintiff’s co-worker did not intend to injure plaintiff.  Thus, the Court analyzed whether plaintiff’s injuries were “substantially certain to follow.”  Believing 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 instead falls within the range of negligent acts that are covered by workers’ compensation.  Further, the Court noted that ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing’.  In reversing the district court’s decision and granting summary judgment, the Court found that although the employer may have been negligent or even grossly negligent in allowing the defective cylinder to be refilled, it was not inevitable that plaintiff would be injured as a result.

Stanley v. Airgas-Southwest, Inc., et al. (La. 2015)