Harvey v. Preload ( 2023 )

Case: 23-30120 Document: 00516917400 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 3, 2023
No. 23-30120 Lyle W. Cayce
____________ Clerk
Raymond S. Harvey,
Plaintiff—Appellant,
versus
Preload, L.L.C.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:21-CV-401
______________________________
Before Clement, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Raymond S. Harvey, a former employee of Preload, L.L.C., was
injured when the multi-level rolling scaffold upon which he was working
toppled. He sued Preload, alleging that its intentional misconduct satisfied
Louisiana’s Workers’ Compensation Law’s explicit carve-out for
“intentional acts.” The district court disagreed. After denying Mr. Harvey’s
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30120 Document: 00516917400 Page: 2 Date Filed: 10/03/2023
No. 23-30120
motion for leave to file a sur-reply, it granted Preload’s motion for summary
judgment. For the reasons set forth below, we AFFIRM.
I. Background
A. Facts
Preload, a business that constructs concrete water storage tanks,
contracted with City of Lake Charles to construct a water tank at one of the
City’s water treatment facilities. Raymond Harvey worked as a laborer for
Preload and was assigned to the Lake Charles water tank project.
To complete the job, Preload leased the parts for a rolling scaffold,
which it then erected inside the water tank. The scaffold itself was five
sections high and one section wide, topping out at roughly thirty-four feet. It
was not affixed with a backup base, which adds stability and prevents
collapse, and the wheels had no locking mechanism. The tank was
constructed with a ten-inch ledge along the outer wall, with the floor sloping
down twelve degrees from this ledge to the center floor, which was level. The
scaffold’s outer wheels were situated atop the tank’s ten-inch ledge while the
inner wheels sat on the center of the floor. This resulted in a predetermined
and fixed path for the scaffold to move around the tank, leaving it with
roughly six inches to maneuver inward or outward to avoid hazards. Near
the inner wheels of the scaffold was a twenty-four-inch hole in the tank floor,
which Preload partially covered with a loose piece of ¾ inch plywood.
On October 5, 2020, David Jeter—the project manager for the Lake
Charles project—instructed a crew to waterproof wall panel seams inside the
tank. Mr. Harvey and other members of the crew mounted the rolling
scaffold, which had been “red-tagged” as unfit for use, and began painting
the seams. Once they finished painting the first section, a crew member
called down for the other workers to roll the scaffold to the next seam. As
the scaffold was being moved, one of the wheels on its base fell into the
2
Case: 23-30120 Document: 00516917400 Page: 3 Date Filed: 10/03/2023
No. 23-30120
prefabricated, twenty-four-inch hole in the floor. Subsequently, the scaffold
toppled backward to the floor. As a result, Mr. Harvey was injured.
B. Procedural History
Mr. Harvey filed a petition for damages in Louisiana state court, and
Preload subsequently removed the case to the district court based on
diversity jurisdiction. Preload moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), which the district court denied. It reasoned that Mr.
Harvey had sufficiently alleged conditions and violations of safety standards
concerning the subject scaffold, in addition to Preload’s motivation for
completing the job, to support its claim that there was a virtual certainty the
accident would occur. Preload then moved for summary judgment on the
same ground—there was no genuine dispute of material fact that Preload did
not commit an “intentional act” within the meaning of Louisiana Revised
Statutes § 23:1032(B). After denying Mr. Harvey’s motion for leave to file a
sur-reply, the district court granted Preload’s motion for summary judgment.
Mr. Harvey timely appealed.
II. Jurisdiction & Standard of Review
The district court had jurisdiction under 28 U.S.C. § 1332. We have
appellate jurisdiction under 28 U.S.C. § 1291.
We review a district court’s order granting summary judgment de
novo, applying the same standard as the district court. Brand Servs., L.L.C.
v. Irex Corp., 909 F.3d 151, 155–56 (5th Cir. 2018). “Summary judgment is
proper only when it appears that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.” Id. at 156(quotation omitted). We view the facts in the light most favorable to the non-
movant and draw all inferences in his favor. Id.3
Case: 23-30120 Document: 00516917400 Page: 4 Date Filed: 10/03/2023
No. 23-30120
Further, we review a district court’s decision denying a motion for
leave to file a sur-reply for abuse of discretion. Butler v. Porter, 999 F.3d 287,
292 (5th Cir. 2021), cert. denied, 142 S. Ct. 766 (2022).
III. Discussion
Of course, on the substantive question in this case, we are required to
apply Louisiana law. Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 391 (5th
Cir. 2014). Additionally, we are bound by the Louisiana Supreme Court and
consider decisions by the courts of appeals. Temple v. McCall, 720 F.3d 301,
307 (5th Cir. 2013). It is important to keep in mind what we are not
considering: whether Mr. Harvey should receive workers’ compensation.
Rather, we are considering a statute that allows recovery beyond workers’
compensation which is very rarely applied and only to intentional situations.
The whole purpose of workers’ compensation is to eliminate the need for
litigation related to workplace accidents. Thus, the statute in question
allowing recovery beyond workers’ compensation is very rarely applied and
only to intentional situations. Nonetheless, Mr. Harvey contends the district
court erred in granting summary judgment to Preload and denying his motion
for leave to file a sur-reply. Each issue is addressed below, but neither
warrants reversal.
A. Louisiana’s Intentional Acts Exception
Mr. Harvey argues that he presented evidence sufficient to create a
genuine dispute of material fact whether Preload committed an intentional
act within the meaning of § 23:1032(B) that caused his injuries. More
precisely, he contends that Preload’s multiple instances of negligence or
recklessness add up to a showing that Preload knew Mr. Harvey’s injuries
were substantially certain to follow. We disagree.
To recover in tort against Preload in light of § 23:1032(B), Mr. Harvey
must prove that Preload “knew that the result is substantially certain to
4
Case: 23-30120 Document: 00516917400 Page: 5 Date Filed: 10/03/2023
No. 23-30120
follow from its conduct, whatever its desire may be as to that result.” Danos
v. Boh Bros. Constr. Co., 132 So. 3d 958, 959 (La. 2014) (per curiam). To show
“substantial certainty,” it is not enough that an employer has “knowledge
that a machine is dangerous and that its use creates a high probability that
someone will eventually be injured.” Stanley v. Airgas-Sw., Inc., 171 So. 3d
915, 916–17 (La. 2015) (quotation omitted). Likewise, “mere knowledge and
appreciation of a risk” is not sufficient to constitute intent. Id. at 917(quotation omitted). “[R]eckless or wanton conduct by an employer” also
does not “constitute intentional wrongdoing.” Id. (quotation omitted).
Instead, “substantial certainty” requires something “more than a reasonable
probability that an injury will occur”; it is something closer to “inevitable”
or “incapable of failing.” See Batiste v. Bayou Steel Corp., 45 So. 3d 167, 168
(La. 2010); see also Rolls ex rel. A. R. v. Packaging Corp. of Am. Inc., 34 F.4th
431, 441 (5th Cir. 2022) (noting “[e]ven knowledge of a high degree of
probability that injury will occur is insufficient to establish that the employer
was substantially certain that injury would occur” (quotation omitted)).
Mr. Harvey has failed to meet his burden to raise a material fact issue
on the relevant point. He points to a myriad of evidence that he contends, in
the aggregate, adds up to an intentional act. 1 For instance, he relies on the
rolling scaffold’s lack of a locking mechanism on its wheels, its improper
height-to-width ratio, the fact that it had no backup base affixed, and that it
_____________________
1
Mr. Harvey mainly relies on Robinson v. N. Am. Salt Co., 865 So. 2d 98 (La. Ct.
App. 2003) to support his contention that multiple instances of fault satisfy the substantial
certainty requirement. We find this case unpersuasive for two reasons. First, when
evaluating issues of state law, we “look to the final decisions of that state’s highest court,”
which Robinson is not. Temple, 720 F.3d at 307 (quotation omitted). Second, the majority
in Robinson relied, in part, on an expert’s after-the-fact analysis to conclude the substantial
certainty requirement was met even though there was no evidence that the relevant
individual had knowledge or a belief that an accident was substantially certain to occur.
Robinson, 865 So.2d at 112 (McDonald, J., dissenting).
5
Case: 23-30120 Document: 00516917400 Page: 6 Date Filed: 10/03/2023
No. 23-30120
was red-tagged as unfit for use. All of this evidence certainly increases the
likelihood that the rolling scaffold might topple, especially considering that it
was situated on a twelve-degree slanted floor and within its fixed path was a
two-foot hole partially covered by plywood that no one disputes could not
support the weight of the scaffold. But, importantly, Preload was not aware
of several of these facts prior to the accident.
For instance, while Mr. Jeter knew the floor was sloped, he did not
recall measuring it to determine the degree of the slope. He also believed that
the two-foot hole was covered by a piece of plywood that was fastened into
the concrete with nails, and did not notice a different, loose piece of plywood
was partially covering the hole prior to the accident. 2 Moreover, neither Mr.
Jeter nor Mr. Alvarez—the lead man for the Lake Charles project—believed
the collapse of the rolling scaffold was a virtual certainty. 3 Nor had they ever
seen a rolling scaffold fall. In fact, just two days before the accident, the
rolling scaffold had been used without incident—albeit without employees
_____________________
2
For purposes of this decision, we accept Mr. Harvey’s argument that we should
not rely on Mr. Jeter’s assertion that he simply forgot about the rolling scaffold being red-
tagged and lacking a backup base. See Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir. 2009)
(per curiam) (“[W]hen the circumstances are conducive to lying, well-supported suspicion
of mendacity may serve as a legitimate basis for the factfinder’s reasonable inferences
concerning the ultimate facts at issue.”). Nonetheless, even if Mr. Jeter remembered the
rolling scaffold was red-tagged and lacked a backup base, this still would not be enough to
satisfy the substantial certainty requirement. Stanley, 171 So. 3d at 916 (“[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.” (quotation omitted)).
3
Our conclusion that Mr. Harvey has failed to create a genuine dispute of material
fact as to whether Preload knew to a virtual certainty that he would be injured also disposes
of his argument that because the district court denied Preload’s Rule 12(b)(6) motion to
dismiss, it also had to deny Preload’s motion for summary judgment. That is simply not
the law—the two rules are different; one involves pleading and the other involves evidence.
Put another way, Mr. Harvey has failed to support all of his allegations with material fact
issue evidence.
6
Case: 23-30120 Document: 00516917400 Page: 7 Date Filed: 10/03/2023
No. 23-30120
atop—even though all of the same hazards were present as the day of the
collapse. Thus, while Mr. Harvey’s evidence might raise a fact issue on gross
negligence or even recklessness, we cannot say there is a genuine dispute of
material fact that Preload knew to a virtual certainty that Mr. Harvey would
be injured. See Reeves v. Structural Pres. Sys., 731 So. 2d 208, 213 (La. 1999)
(concluding the evidence was not sufficient to satisfy the “substantial
certainty” standard because the pot had been previously moved without
anyone being injured, the supervisor believed the employees could move the
pot without incident, and the plaintiff had already moved the pot halfway by
himself with no trouble).
B. Denial of Motion for Leave to File Sur-Reply
Mr. Harvey further contends the district court abused its discretion in
denying his motion for leave to file a sur-reply because by denying the motion,
it failed to consider the attached supplemental expert affidavit, which would
have created a genuine dispute of material fact. We disagree for the
straightforward reason that Preload’s reply did not raise any new arguments
warranting a sur-reply. Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th
Cir. 2017) (concluding the district court did not abuse its discretion in
denying the plaintiff’s motion for leave to file a sur-reply because the
defendant “did not raise any new arguments in its reply brief”); see also
Jefferson v. Christus St. Joseph Hosp., 374 F. App’x 485, 489 (5th Cir. 2010)
(concluding district court’s decision to disregard appellant’s sur-reply and
attached exhibits in the context of a motion for summary judgment was not
an abuse of discretion). Therefore, the district court did not abuse its
discretion in denying Mr. Harvey’s motion for leave to file a sur-reply.
IV. Conclusion
For the reasons set forth above, we AFFIRM the district court’s
order granting summary judgment in favor of Preload.
7