Caceres v. Preload ( 2023 )

Case: 23-30354 Document: 00516972943 Page: 1 Date Filed: 11/17/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-30354
FILED
November 17, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Edilberto Caceres,
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-3834
______________________________
Before Dennis, Elrod, and Wilson, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant Edilberto Caceres appeals the district court’s
grant of summary judgment to Defendant-Appellee Preload, L.L.C., on his
survivorship and wrongful death actions purportedly brought under the
intentional act exception to Louisiana’s worker’s compensation scheme in
La. R.S. 23:1032(B). This case arises out of the death of Caceres’s son, Isaid
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30354 Document: 00516972943 Page: 2 Date Filed: 11/17/2023
No. 23-30354
Figueroa, who was fatally injured while working on scaffolding in the course
and scope of his employment with Preload.
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) (citing Reingold v. Swiftships,
Inc., 126 F.3d 645, 646 (5th Cir. 1997)). “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 (quoting
Reingold, 126 F.3d at 646). We view the facts in the light most favorable to
the non-movant and draw all inferences in his favor. Id. (citing Reingold, 126
F.3d at 646).
Louisiana’s Worker’s Compensation Law precludes a tort suit against
an employer for a workplace injury unless the plaintiff can show that the
injury resulted from an “intentional act.” La. R.S. 23:1032(B). The
intentional act exception is construed narrowly. Reeves v. Structural Pres. Sys.,
98-1795, p. 6 (La. 3/12/99), 731 So. 2d 208, 211. To constitute “intent,” the
plaintiff must show that the employer either consciously desired the physical
result of its conduct or knew the result was “substantially certain to follow”
from its conduct. Bazley v. Tortorich, 397 So. 2d 475, 482 (La. 1981); see also
Stanley v. Airgas-Sw., Inc., 2015-0274, p. 1 (La. 4/24/15), 171 So. 3d 915, 916
(per curiam).
“Substantial certainty” demands “more than a reasonable probability
that an injury will occur” and requires something closer to “inevitable or
incapable of failing.” Stanley, 171 So. 3d at 916. (quoting Reeves v. Structural
Pres. Sys., 98–1795, pp. 9–10 (La. 3/12/99), 731 So. 2d 208, 213); see also Rolls
ex rel. A.R. v. Packaging Corp. of Am. Inc., 34 F.4th 431, 442 (5th Cir. 2022)
(alteration in original) (noting that “[e]ven knowledge of a high degree of
probability that injury will occur is insufficient to establish that the employer
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No. 23-30354
was substantially certain that injury would occur” (quoting Wilson v. Kirby
Corp., No. 12-0080, 2012 WL 1565415, at *2 (E.D. La. May 1, 2012)). A belief
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.” Batiste
v. Bayou Steel Corp., 2010-1561, p.2 (La. 10/1/10), 45 So. 3d 167, 168 (quoting
Reeves, 98–1795, at pp. 9–10, 731 So. 2d at 213).
In a related suit against Preload by another employee who was injured
in the same incident as Figueroa, another panel of this court recently affirmed
the grant of summary judgment to Preload based on largely the same evidence
as in this case because the evidence did not show the intentional act exception
applied. Harvey v. Preload, L.L.C., No. 23-31020, 2023 WL 6442598, at *2-3
(5th Cir. Oct. 3, 2023) (unpublished). We find this decision very persuasive.
Here, the district court correctly found that Caceres failed to create a
genuine issue of material fact that Preload committed an intentional act under
§ 23:1032(B). Caceres relies on evidence that he contends, in the aggregate,
adds up to satisfy the “substantial certainty” standard. However,
importantly, Preload was not aware of several of these facts prior to the
accident. Harvey, 2023 WL 6442598, at *3. That an expert for Caceres
testified it was his opinion that the accident was inevitable makes no
difference, because there is still no evidence that Preload knew the accident
was inevitable. See Populars v. Trimac Transp., Inc., No. 22-30413, 2023 WL
20866, at *2 (5th Cir. Jan. 3, 2023) (emphasis added) (affirming summary
judgment for the defendant despite evidence that the plaintiff’s injury was
inevitable because the plaintiff failed to show that the employer “knew that
[the plaintiff’s] injury was inevitable”).
While Caceres’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 substantial certainty that Caceres would be injured.
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See id; Harvey, 2023 WL 6442598, at *3. Because Caceres’s claims do not fall
within the intentional act exception of § 23:1032(B), summary judgment was
appropriate.
The judgment of the district court is AFFIRMED.
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