What Do You Think: Did Company’s Alleged Negligence Permit Water Tower Laborer to Sue for Damages?

12 Dec, 2023 Chris Parker


Lake Charles, La (WorkersCompensation.com)–Workers can generally circumvent the exclusivity provision of a workers’ compensation act by demonstrating that the employer intentionally injured the employee. But can a series of negligent or reckless acts constitute intent?

A case involving a laborer who worked for a company that built water towers addressed that issue. A project manager assigned him and some coworkers to stand on a rolling scaffold and waterproof wall panels. The scaffold had been used two days earlier under the same conditions and had not fallen. The manager had never seen it fall.

The scaffold, however, was not affixed with a backup base to give it stability and prevent collapse. The wheels had no locking mechanism. Near the inner wheels of the scaffold was a twenty-four-inch hole in the tank floor. The company partially covered this hole with a loose piece of three-quarter inch plywood. The project manager thought the plywood was nailed to the cement.

Once the workers 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 hole in the floor. The scaffold toppled backward to the floor and the laborer was injured.

The laborer sued the company in tort. He alleged that the company’s multiple instances of negligence or recklessness added up to a showing that company knew his injuries were substantially certain to follow.

The trial court dismissed the case based on the workers’ compensation act’s exclusivity provision.

Under Louisiana law, to sue a company that has workers’ compensation coverage, an injured employee must establish that the employer acted intentionally in causing the injury. More specifically, the employee must show that the employer knew the resulting injury was substantially certain to follow from its conduct.

Did the flawed scaffolding show the employer intentionally injured laborer?
A. No. The scaffolding had been used two days earlier without any problems.
B. Yes. Recklessness by the employer that causes an employee’s injury is an exception to the exclusivity rule.

If you chose A, you sided with the court in Harvey v. Preload, LLC, No. 23-30120 (5th Cir. 10/03/23), which held that the worker failed to establish an intentional act on the part of the employer.

The court noted that to show "substantial certainty," it is not enough to show that an employer has knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured.

The court acknowledged that the laborer pointed to multiple alleged failures on the company’s part with respect to the scaffold, such as the lack of a locking mechanism, and the fact that it had no backup base affixed.

“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,” the court wrote.

But importantly, the court remarked, the company was not aware of several of the problems with the set-up of the scaffold prior to the accident.

For instance, the project manager believed the 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.

Moreover, the manager had no reason to believe the scaffold would fall, given its previous usage without incident.

The court thus affirmed the lower court’s dismissal of the claim.

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