Fricke v. Owens-Corning Fiberglas - 559 So. 2d 24 (La. Ct. App. 1990)

Rule:

La. Rev. Stat. Ann. § 23:1032 provides, in part: Nothing in this chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act. The immunity from civil liability provided by this section shall not extend to: 1) any officer, director stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this section.

Facts:

One employee died when he fell into his employer's tank of mustard in order to retrieve a bag that had fallen therein, and a second employee never regained consciousness due to the allegedly noxious fumes upon entering the tank to rescue his co-worker. The trial court granted the manufacturer summary judgment, upholding the latter's contention that the workers' compensation laws were the families' exclusive remedy due to their failure to alleged that the company intentionally caused the workers' injuries or were substantially certain that the injuries would occur. Plaintiffs, families of the two employees, sought review of the trial court’s decision. 

Issue:

Was the grant of summary judgment in favor of the manufacturer proper under the circumstances? 

Answer:

No.

Conclusion:

The court reversed the judgment and remanded, noting first that under La. Rev. Stat. Ann. § 23:1032 the compensation laws were a worker's exclusive remedy unless the complained of act was intentional. Explaining, the court said that "intent" could be shown when a person knew a result was substantially certain to follow his conduct. Moreover, the employer's intent could not be resolved on the basis of its pleadings, especially where the manufacturer knew of the dangerous fumes, failed to provide adequate ventilation or respiratory equipment, and required employees to go into the tank to retrieve foreign objects.