RHONDA DANOS, ET AL.
BOH BROS. CONSTRUCTION CO., LLC, ET AL
IN RE: Boh Bros. Construction Co. LLC; - Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, Nos. 2010-03184, 2010-03451; to the Court of Appeal, Fourth Circuit, No. 2013-C-1356;
Marcus R. Clark, Jeffrey P. Victory, John L. Weimer, Greg G. Guidry, Jefferson D. Hughes
[13-2605 La. 1] PER CURIAM
Ronald Martin, an employee of Boh Bros. Construction Company, LLC (" Boh Bros." ), was severely injured while using a cutting saw during the course of his employment. The accident occurred when Mr. Martin was directed to use a cutting saw to cut a pipe, which was laying flat on the ground without support. As Mr. Martin cut the pipe, the pipe caved inward at the cut, pinching the blades of the saw. The saw then kicked back and struck Mr. Martin in the head and neck. Subsequently, plaintiffs  filed the instant suit against Boh Bros. Plaintiffs alleged Boh Bros. committed an intentional tort by requiring Mr. Martin to cut the pipe in an unsafe manner.
Boh Bros. moved for summary judgment, alleging plaintiffs' exclusive remedy was in workers' compensation. The district court denied summary judgment, and the court of appeal denied supervisory writs. This application followed.
To recover in tort against Mr. Martin's employer under La. R.S. 23:1032(B), plaintiffs must prove the employer (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. Moreau v. Moreau's Material Yard, 12-1096 (La. [13-2605 La. 2] 9/21/12), 98 So.3d 297. In Reeves v. Structural Preservation Systems, 98-1795 at pp. 9-10 (La. 3/12/99), 731 So.2d 208, 213, we discussed the " substantial certainty" requirement as follows:
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.
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" 'Substantially certain to follow' requires more than a reasonable probability that an injury will occur and 'certain' has been defined to mean 'inevitable' or 'incapable of failing.'" Jasmin v. HNV Cent. Riverfront Corp., supra [642 So.2d 311] at 312 [La. App. 4 Cir. 1994]. " [A]n employer's mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the 'substantial certainty' requirement." Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir. 1993), writ denied, 629 So.2d 347 (La. 1993).
" Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing." Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir. 1991)).
In the instant case, Boh Bros. presented testimony from Mr. Martin's co-workers on the day of the accident, indicating that no one, including Mr. Martin's foreman, intended for Mr. Martin to be harmed in any way. Boh Bros. further presented evidence establishing that an accident of this nature has never occurred in Boh Bros.' history of operation.
In opposition, plaintiffs submitted expert evidence indicating that Boh Bros. should have known that using the cutting saw in this ...