JONTRELL SAIZON v. THE DOW CHEMICAL COMPANY JOHN THIBODEAUX CHAZ MORENO AND MCKENZIE GRIMES (2026)

In this action seeking damages for personal injuries, plaintiff, Jontrell Saizon, appeals from a judgment of the trial court granting summary judgment in favor of defendants, The Dow Chemical Company (“Dow”), Chaz Moreno, McKenzie Grimes, and John Thibodeaux, and dismissing his claims against them with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 25, 2020, an explosion and fire occurred in the Light Hydrocarbon 3 Unit (“LHC-3 Unit”) of the Dow chemical plant located in Plaquemine, Louisiana, causing severe injuries to Mr. Saizon. At the time of the incident, the LHC-3 Unit was undergoing maintenance work related to the C-25C dryer's regeneration piping system (“the C-25C”). On April 15, 2019, Dow entered into an “On And Off Site Services Agreement” (“the contract”) with Turner Industrial Group, L.L.C. (“Turner”) to bring in employees, subcontractors, and equipment to assist with this work. Mr. Saizon was working at Dow on the day in question as an employee of Turner.

As a result of the fire and explosion, Mr. Saizon sustained serious injuries, including severe burns. He filed suit naming Dow and three of Dow's employees, Mr. Moreno, Mr. Grimes, and Mr. Thibodeaux, as defendants. Defendants answered the suit, generally denying the allegations therein and asserting that Mr. Saizon's exclusive remedy was in workers’ compensation. Mr. Saizon alleged claims of general and gross negligence, premises liability, and intentional tort against defendants. In response, defendants filed motions for summary judgment ¹ arguing that no genuine issues of material fact remained for trial and that they were entitled to judgment as a matter of law. Defendants argued that at the time of this incident, Mr. Saizon was Dow's statutory employee whose injuries were not caused by an intentional act, thereby making workers’ compensation benefits Mr. Saizon's exclusive remedy as against Dow. Defendants further noted that there was no evidence of either actual intent to injure or knowledge that injury was substantially certain to occur.

In support of their motions for summary judgment, defendants submitted, without objection, the deposition and affidavit of Jonathan Brandt, the Production and Facilities leader at Dow's Plaquemine plant at the time of this incident, along with a copy of the contract between Dow and Turner and a copy of Dow's Process Safety Containment Event Review (“PSCE Review”); the deposition of Mr. Thibodeaux; the deposition of Matthew Fellows, the operations leader at Dow's Plaquemine plant at the time of this incident; the affidavit of Mr. Moreno; the affidavit of Mr. Grimes; Mr. Saizon's Acadian Ambulance Service invoice from the day of this incident;² a copy of Mr. Saizon's answers to Dow's interrogatories; and a copy of Mr. Saizon's petition for damages.

Mr. Saizon opposed both motions arguing that genuine factual issues remained as to whether the contract between Turner and Dow was applicable and whether defendants’ actions and/or failure to act “exceed[ed] the substantial certainty standard, thus defeating any workers’ compensation bar.” In opposition to the motions for summary judgment, Mr. Saizon relied on the deposition of Mr. Thibodeaux; the deposition of Mr. Fellows; the deposition of Mr. Brandt; the PSCE Review; a copy of the contract between Dow and Turner; a copy of the Safe Work Permit issued relative to the job Mr. Saizon was working at the time of this incident; a document entitled “Hydrocarbons Process Safety Cardinal Rules”; a Dow document entitled “Learning experience from unplanned events” referencing the incident in question; a Dow document entitled “LCS - Hot Work Results of Poor Standard Execution” dated July 2020; several internal Dow email communications regarding this incident as well as prior incidents at the facility resulting in injuries to other employees; and the declarations and reports of several expert witnesses retained by Mr. Saizon to investigate the incident.³

Following a hearing on the motions for summary judgment, the trial court signed a judgment on January 27, 2025, granting summary judgment in favor of Dow, Mr. Moreno, Mr. Grimes, and Mr. Thibodeaux, and dismissing, with prejudice, all claims filed by Mr. Saizon against defendants. The sole issue for our review is whether the trial court erred in granting summary judgment in favor of defendants.⁴

DISCUSSION

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. M/V Resources LLC v. Louisiana Hardwood Products LLC, 2016-0758 (La. App. 1 Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 2017-1748 (La. 12/5/17), 231 So.3d 624. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3).

On a motion for summary judgment, the initial burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). The mover's supporting documentary evidence must prove the essential facts necessary to carry his burden. Hooper v. Lopez, 2021-1442 (La. App. 1 Cir. 6/22/22), 344 So.3d 656, 660, as clarified on reh'g (9/1/22), writ denied, 2022-01421 (La. 11/22/22), 350 So.3d 501. If the mover fails to carry this burden, summary judgment must be denied in favor of a trial on the merits. Crockerham v. Louisiana Medical Mutual Insurance Co., 2017-1590 (La. App. 1 Cir. 6/21/18), 255 So.3d 604, 608. It is only when the moving party has established both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, that it is incumbent upon the adverse party to establish that there is a genuine issue for trial. Neighbors Federal Credit Union v. Anderson, 2015-1020 (La. App. 1 Cir. 6/3/16), 196 So.3d 727, 734-735.

When a motion is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing there is a genuine issue for trial. La. Code Civ. P. art. 967(B). The burden is then on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1). If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. Code Civ. P. art. 967(B).

It is not the function of the trial court on a motion for summary judgment to determine, or even inquire into, the merits of the issues raised, or to weigh conflicting evidence of material fact. Rather, the court must view the record and all reasonable inferences to be drawn from it in the light most favorable to the nonmoving party. King v. Town of Clarks, 2021-01897 (La. 2/22/22), 345 So.3d 422, 423 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 225 So.3d at 1109. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Gentry v. Spillers, 2020-1077 (La. App. 1 Cir. 5/10/21), 325 So.3d 398, 402, writ denied, 2021-00809 (La. 10/5/21), 325 So.3d 373.

Louisiana Workers’ Compensation Act

Under the Louisiana Workers’ Compensation Act, La. R.S. 23:1020.1, et seq., an employee injured in an accident while in the course and scope of his employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and, thus, may not sue his employer in tort. Stonetrust Commercial Insurance Company v. TBT Contracting, Inc. of Louisiana, 2022-0972 (La. App. 1 Cir. 6/20/23), 370 So.3d 494, 499-500. Pursuant to La. R.S. 23:1032(A)(1)(a), the provisions of the Act are the exclusive remedy for employees suffering from work-related injury or illness, unless the injury/illness results from an intentional act. The Act applies both to a direct employer/employee relationship, as well as to a statutory employer/employee relationship. Labranche v. Fatty's, LLC, 2010-0475 (La. App. 1 Cir. 10/29/10), 48 So.3d 1270, 1272. An employer seeking to avail itself of tort immunity bears the burden of proving its entitlement to immunity. Furthermore, immunity statutes must be strictly construed against the party claiming the immunity. Fleming v. JE Merit Constructors, Inc., 2007-0926 (La. App. 1 Cir. 3/19/08), 985 So.2d 141, 145-146.

Statutory Employer

Statutory employer immunity is governed by La. R.S. 23:1061(A)(1), which provides that when a principal undertakes to execute any work that is a part of his trade, business, or occupation and contracts with a contractor for the execution of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, is entitled to “the exclusive remedy protections of R.S. 23:1032.” Louisiana adopted a broad version of the statutory employer doctrine; thus, the Act expressly extends the employer's compensation obligation and its corresponding tort immunity to a “principal,” which is also referred to as a “statutory employer.” See Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072 (La. 4/9/03), 842 So. 2d 373, 378. The ultimate determination of whether a principal is a statutory employer is a question of law for the court to decide. Maddox v. Superior Steel, 2000-1539 (La. App. 1 Cir. 9/28/01), 814 So.2d 569, 572.

A statutory employer relationship shall exist in two instances: (1) when a party undertakes to carry out any work that is a part of its trade, business, or occupation by means of a contract with another party; or (2) when a party contracts to perform work and sub-lets any portion of the work to another party (the “two-contract” theory). See La. R.S. 23:1032(A)(l) and (2) and La. R.S. 23:1061(A)(1) and (2); Allen, 842 So.2d at 378.

Under the first basis, which focuses on the principal's trade, business, or occupation, a written contract recognizing the principal as a statutory employer is necessary. Louisiana Revised Statute 23:1061(A)(3) provides, in part:

[A] statutory employer relationship shall not exist between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor's employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal's goods, products, or services.

Louisiana jurisprudence demonstrates that rebutting the presumption of a statutory employer relationship is difficult because the words “integral” and “essential” are liberally interpreted, in keeping with the Louisiana Legislature's intent. See Jackson v. St. Paul Ins. Co., 2004-0026 (La. App. 1 Cir. 12/17/04), 897 So.2d 684, 688-689, writ denied, 2005-0156 (La. 3/24/05), 896 So.2d 1042 (finding that construction of a new plant for a principal whose business is processing chemicals for transportation and sale is essential to the principal's ability to generate its goods, products, and services); see also Applegarth v. Transamerican Refining Corp., 781 So.2d 804, 807 (La. App. 5 Cir. 2/28/01), writ denied, 2001-0834 (La. 5/11/01), 792 So.2d 738 (holding that refurbishment of a refinery was essential to the ability of the refinery to generate its goods, products, or services).

In the instant case, defendants argue that the contract between Dow and Turner creates a rebuttable presumption that Dow was Mr. Saizon's statutory employer at the time of this incident. Defendants point specifically to § 5.12 of the contract, which provides as follows:

5-12 Statutory Employer

For Suppliers providing Services in Louisiana, Buyer (as principal employer at Buyer's sites in Louisiana) and Supplier (as the direct employer of Supplier's employees at Buyer sites in Louisiana) mutually agree that, with respect to the Work or Services provided to Buyer in Louisiana in connection with this Agreement, or under any purchase order to which this Agreement applies, it is their intention to recognize Buyer as the statutory employer of (a) Supplier's direct employees and (b) employees which would otherwise by [sic] recognized as Supplier's statutory employees.

Regarding the alleged statutory employer relationship, Mr. Saizon argues on appeal that there is nothing in the contract to identify or describe the nature and scope of the work to be performed by the Turner employees. Moreover, he notes the absence of any purchase orders in this case, arguing that the contract is not applicable unless the work is performed pursuant to a purchase order. We find no merit to Mr. Saizon's arguments in this regard.

Pursuant to Section 5.12 of the contract, it is evident Dow and Turner were in agreement that for any “Work or Services provided ․ in Louisiana in connection with [the contract], or under any purchase order to which [the contract] applies,” Dow would be the statutory employer of Turner's employees. (Emphasis added.) “Services” is defined in “Exhibit A – Scope of Work” to include “General Mechanical Maintenance Services,” including the “[l]abor, supervision, and such equipment as may be specified to execute” these services, and “Small Construction Projects.” The record is clear that at the time of the incident, Mr. Saizon was performing general maintenance on the C-25C. Moreover, Mr. Brandt, who was a part of the Root Cause Investigation in this matter and familiar with the contract between Dow and Turner, attested that the work performed by Turner and Mr. Saizon at the time of the incident was an integral part of or essential to the ability of Dow to generate its goods, products or services.

Accordingly, it is clear from the evidence that there is a rebuttable presumption of a statutory relationship between Dow and Mr. Saizon. See La. R.S. 23:1061(A)(3). This presumption can be overcome only by a showing that the work being performed by Mr. Saizon was “not an integral part of or essential to the ability of [Dow] to generate ․ goods, product, or services.” La. R.S. 23:1061(A)(3). From our review of the record, Mr. Saizon has failed to present any evidence to rebut this presumption, i.e., evidence demonstrating that maintenance work related to the C-25C is not essential to the ability of Dow to generate its goods, products or services. Thus, Dow is the statutory employer of Mr. Saizon and entitled to statutory immunity.

Intentional Act

Louisiana Revised Statutes 23:1032 carves out an exception to an employer's immunity from tort actions under the Act: “Nothing in this Chapter shall affect the liability of the employer ․ resulting from an intentional act.” La. R.S. 23:1032(B).

The question of whether an employer's conduct falls under the intentional act exception to the Act was considered by the Louisiana Supreme Court in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99), 731 So.2d 208. In Reeves, the employer directed an employee to move a sandblasting pot manually, a procedure that was prohibited by Occupational Safety and Health Administration (OSHA) guidelines and that the employee's supervisor feared would eventually lead to injury. Nonetheless, the court held that the conduct complained of did not amount to an intentional act and that plaintiff's remedy was limited to workers’ compensation benefits. Id. at 212-213.

The Reeves court outlined the history of workers’ compensation in Louisiana. From 1914 until 1976, employees were free to pursue tort remedies for work-related injuries against executive officers and co-employees. However, by Act 147 of 1976, the legislature amended the Act in two important respects. It provided that workers’ compensation shall be the exclusive remedy against not only the employer, but also against any principal, officer, director, stockholder, partner or employee of the employer, or principal who was engaged at the time of the injury in the normal course and scope of his employment. La. R.S. 23:1032(A)(1)(a). It also provided that the employee is not limited to workers’ compensation and may pursue any other remedy where his compensable injury results from an intentional act. La. R.S. 23:1032(B); Reeves, 731 So.2d at 209-210.

As noted by the Reeves court, the legislature, in considering the 1976 amendment, used the words “intentional act” and rejected the following terminology offered for inclusion in the proposed legislation: “violation of a recognized safety rule or regulation, ․ failure to provide a safety device required by a recognized safety rule or regulation or by a statute, or by gross negligence on the part of a supervisory employee” and “gross negligence” (meaning “such disregard of the interest of others that the tortfeasor's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonable careful man under like circumstances”). Id. at 210.

The Louisiana Supreme Court has concluded that the words “intentional act” mean the same as “intentional tort” in reference to civil liability. “Intent” is found when the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Bazley v. Tortorich, 397 So.2d 475, 480-481 (La. 1981).

“Substantially certain to follow” requires more than a reasonable probability that an injury will occur. The injury must be inevitable. The injury causing event must be incapable of failing. A distinguishing feature in determining whether the conduct complained of meets the “substantial certainty” test is whether the event has occurred before or whether the injury has manifested itself before. Abney v. Exxon Corp., 98-0911 (La. App. 1 Cir. 9/24/99), 755 So.2d 283, 288, writ denied, 99-3053 (La. 1/14/00), 753 So.2d 216. Citing Bazley and a long list of subsequent cases, the Louisiana Supreme Court noted in Reeves that it and the appellate courts have narrowly construed the intentional act exception according to the legislative intent and have almost universally held that employers are not liable under the intentional act exception for violations of safety standards. See Reeves, 731 So.2d at 211-212 and cases cited therein. Moreover, this court has noted that based on the narrow construction of La. R.S. 23:1032, “cases holding the employer's acts do not amount to intentional acts far outnumber the cases holding the employer's act is intentional so as to trigger the application of the intentional act exception.” Abney, 755 So.2d at 288.

On appeal, Mr. Saizon argues that viewing the evidence in the light most favorable to him, there remains a genuine issue of material fact as to the question of substantial certainty that should proceed to trial. Mr. Saizon's draws our attention to the “fire triangle,” i.e., when three elements, oxygen, fuel, and an ignition source, come together causing a fire or explosion. Mr. Saizon argues that defendants knew that the equipment that Turner's crew was scheduled to work on contained fuel gas that was extremely flammable and had a low ignition point. Nonetheless, Mr. Saizon asserts, Dow employees failed to ensure that the line was free of hydrocarbons before Mr. Saizon began his work. Mr. Saizon contends that Dow's failures and the actions/inactions of Dow employees in failing to follow Dow's safety policies as well as OSHA guidelines and industry standards allowed for the completion of the fire triangle on the day in question and caused this incident.

Mr. Saizon also points to a number of prior incidents at the LHC-3 Unit, arguing that “despite being fully aware of the causes of these incidents as well as of the ways to prevent them ․ Dow continued to act with impunity, callously subjecting its contractors to knowingly fatal risks, time and time again.” He maintains there is more than enough evidence in the record to support a finding that defendants knew that this incident was substantially certain to follow from their conduct.⁵

According to the record, Dow employee John Thibodeaux was involved with isolating and preparing the C-25C for the valve work to be done by the Turner employees. Mr. Thibodeaux explained, in detail, Dow's normal process for a project such as this. Mr. Thibodeaux indicated that the first step was to isolate the valve by closing or blocking off all the valves and “depressure to the flare,” which he did.

Mr. Thibodeaux noted that after isolation, the next step was “pad and depad with nitrogen” three times, followed by a “Lower Explosive Limit” (“LEL”) test to check for the presence of hydrocarbons. Although Mr. Thibodeaux acknowledged that it was Dow's policy that lines be cleared with nitrogen, he decided it was not a necessary step in this case. Mr. Thibodeaux noted, “It was gas form, open to atmosphere. We did it in other areas of the plant, same process in the line where we didn't have to do it.” However, believing the nitrogen purging process was unnecessary in this instance, Mr. Thibodeaux testified that he opened three bleeder valves and used a sniffer to check for LEL, which revealed no hydrocarbons present in the line. Mr. Thibodeaux then represented to Mr. Moreno, the Dow employee coming on shift after him, that the system was “ready to go.” As a result of the incident, Mr. Thibodeaux was terminated by Dow.

In his affidavit, Mr. Moreno indicates he was approached by Mr. Saizon who requested that Mr. Moreno modify the safe work permit to allow the use of a reciprocating saw for the removal of two butterfly valves on the C-25C. Mr. Moreno believed that Mr. Thibodeaux had properly “nitrogen purged the line.” Nonetheless, Mr. Moreno “attempted to double check the line by taking metered readings with a LEL meter, which showed there were no hydrocarbons.” Based on these readings and his belief that Mr. Thibodeaux had properly purged the line, Mr. Moreno had no reason to believe there were any remaining hydrocarbons in the line where Mr. Saizon and the other Turner employees were working, nor did he have any intention of hurting Mr. Saizon or any other person when he issued the modified safe work permit.

In his deposition, Mr. Brandt testified that Dow had a basic rule of removing flammables before performing “hot work.” The procedure Dow employed for the removal of flammables was to pad and de-pad with nitrogen. Mr. Brandt denied any knowledge of a cultural issue across the organization of operators not following the procedure of padding and de-padding with nitrogen as was required by Dow's rules. Rather, he noted that it was an “isolated problem with Mr. Thibodeaux” who was in a “comfort zone of doing that because [he had] done it in the past and nothing had gone wrong.” Mr. Brandt further testified regarding conversations he had with Mr. Thibodeaux after the incident:

In my discussions with [Mr. Thibodeaux] after the incident, he was dumbfounded that there was a fire because he -- he stated multiple times, [“]I prepped the line, I cleared the line,[”] and he stated it multiple times in the preliminary investigation immediately after the incident that the line was clear.

․

I asked him what went wrong and he told me, [”]I don't know because I prepped the line, I -- I prepared the line, I cleared the line and I depressured the line and I sniffed the line and I don't know why this happened -- [”]

․

[Mr. Thibodeaux] believed he did the job correctly and successfully.

Mr. Brandt was also asked about the “Hydrocarbons Process Safety Cardinal Rules,” specifically the following portion of the rules: “Any draining or venting of hydrocarbons to the atmosphere will create a flammable mixture. If this mixture ignites, the operator and other personnel in the area can be exposed to a flash fire or significant explosion. IMPORTANT! Even a small amount of material can cause a flash fire.” Mr. Brandt explained that “cardinal rules” are a “general set of training rules to give people historical evidence of bad things that have happened when you violate certain policies or ․ create certain situations that ․ could lead to bad things happening.” While Mr. Brandt agreed with this statement, he added that just because there is a flammable mixture, it does not always result in an explosion; it depends on the situation. He indicated that if all three hazards are present, i.e., oxygen, fuel, and an ignition source, that “could lead to a fire.”

Concerning Mr. Moreno's involvement, Mr. Brandt testified that even when issuing a modified permit, Mr. Moreno was still required to use diligence in ensuring the area was free and clear of hydrocarbons. Mr. Moreno was responsible for verifying the contents of the permit and signing off on it. According to Mr. Brandt, Mr. Moreno opened the valve and checked to verify there were no flammables. Mr. Brandt noted further that although there was a “zero reading” on this verification, Mr. Moreno failed to use the correct meter during this process. In connection with this incident, Mr. Moreno was disciplined for his poor execution of “combustible gas detector checks and balances.”

Defendants counter that “an employer's generalized knowledge of risk does not meet the intentional act test without proof of specific knowledge of risk to this plaintiff and moving ahead with operations anyway.” We agree. Following our exhaustive review of the record before us, we conclude that none of the evidence presented herein meets the requirement of substantial certainty. See Reeves, 731 So.2d at 213 (“[M]ere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.”)

There is no dispute herein that Mr. Thibodeaux failed to follow Dow's safety rules regarding the draining/venting of hydrocarbons on the day in question. However, Mr. Thibodeaux did check for LEL using a sniffer, which revealed no hydrocarbons in the line. Moreover, although Mr. Moreno had been advised by Mr. Thibodeaux that the line was “ready to go,” Mr. Moreno also performed an LEL check of the line, which, again, showed no hydrocarbons present. Although Mr. Thibodeaux and Mr. Moreno failed to follow Dow's safety rules while attempting to clear hydrocarbons from the line, we note that these actions, while perhaps negligent or even reckless, do not rise to the level of an intentional tort by defendants. See Id. at 211-213.

We are mindful of Higgins v. Williams Energy Partner, L.P., 2017-1662 (La. App. 1 Cir. 12/12/18), 267 So.3d 1133, writ granted, judgment rev'd, 2019-0049 (La. 3/6/19), 266 So.3d 897. In that case, plaintiff was injured in an explosion at his job and alleged that his employer committed an intentional tort by failing to properly maintain a pipeline at the facility. The explosion resulted from the over-pressurization of an out-of-service reboiler. Id. at 1135-1136. Plaintiff introduced several pieces of evidence pointing to the knowledge of various employees that the reboilers posed a danger, including multiple warnings made to the defendant regarding conditions at that facility. This court reviewed a summary judgment granted in favor of the employer, affirming the trial court's summary dismissal, noting “it is clear that the defendant's management was aware that the blocked reboiler was a hazard, but it is not evident that they were substantially certain that the chemical explosion was to occur from that hazard.” Id. at 1137-1142. However, the Louisiana Supreme Court, granted plaintiff's writ application and reversed the judgment in an unpublished one-paragraph decision, stating generally that “there remain genuine issues of material fact as to whether the defendant is liable to this plaintiff as the result of an intentional act pursuant to La. R.S. 23:1032(B). See La. Code Civ. Proc. art. 966(D)(1). The matter is remanded to the district court for further proceedings.” Higgins, 266 So.3d at 897.

We note that the facts in Higgins are not analogous to the evidence presented in this matter. In Higgins, the plaintiff presented evidence of the management team's awareness of specific dangers at the facility where he was injured and decisions regarding the reboiler that exploded. Id. at 1140-1141. In contrast, in this case, there is no evidence in the record that anyone at Dow knew of the failure of Mr. Thibodeaux and Mr. Moreno to take appropriate action in clearing the line of hydrocarbons. Moreover, the record is devoid of evidence that anyone, including Mr. Thibodeaux and Mr. Moreno, knew of the specific dangers that Mr. Saizon faced at the time of the incident that caused his injuries. As noted, Mr. Brandt testified that Mr. Thibodeaux's failure to properly purge the line on the day of Mr. Saizon's injuries was an isolated incident. This evidences a lack of knowledge on the part of anyone at Dow of any alleged broader issue in the LHC-3 Unit concerning Dow employees failing to follow the proper procedure of padding and de-padding with nitrogen to clear lines of hydrocarbons and the resulting hazards that followed.

The Louisiana Supreme Court has made it clear that, “[e]ven if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.” Reeves, 731 So.2d at 211 (quoting Larson, 2A Workmen's Compensation Law, § 68.13 (1989)). Defendants have shown that, to the extent a root cause of the explosion can be determined, there is no evidence that it was the result of any intentional act by a Dow employee. There is no testimony or documentary evidence presented herein that can be interpreted to show defendants ever intended to cause Mr. Saizon harm or were substantially certain that harm to Mr. Saizon would inevitably follow their actions. Without such evidence, defendants cannot be held liable for an intentional tort. While we recognize the tragic nature of this situation, the jurisprudential parameters of an intentional tort are simply not met in this case. Accordingly, summary judgment was warranted and Mr. Saizon's claim against defendants must be dismissed due to his failure to submit any evidence that the explosion resulted due to anything more than negligence of individuals for whom Dow is answerable.

DECREE

For the above and foregoing reasons, we affirm the trial court's January 27, 2025 judgment. We assess all costs associated with this appeal against plaintiff/appellant, Jontrell Saizon.

AFFIRMED.

FOOTNOTES

1.   Although defendants filed separate motions for summary judgment, we consider the motions together as have the parties in this appeal. We note the overlap concerning the merits of the motions filed by defendants, as well as the evidence submitted by the parties in support of each motion.

2.   Although the Acadian Ambulance record does not appear to be properly authenticated summary judgment evidence, no objection was made to its introduction, and we will consider same. See La. Code Civ. P. art. 966(D)(2).

3.   We note that prior to the hearing on the motions for summary judgment, counsel for Dow, Mr. Moreno, and Mr. Grimes objected to the admissibility of Mr. Saizon's expert declarations and accompanying reports, arguing that Mr. Saizon failed to comply with the trial court's requirement to designate said experts or to respond to interrogatories relating to requests for information related to experts. They further argued that the declarations were not proper summary judgment evidence pursuant to La. Code Civ. P. art. 966(A)(4)(a), which lists affidavits, not declarations, as documents that may be filed in support of or in opposition to a motion for summary judgment. After hearing argument of counsel on this issue, the trial court allowed the declarations and reports into evidence over the objection. Accordingly, the reports are properly before us in this de novo review.

4.   According to the record, Mr. Grimes was working the night of April 24, 2020, but had no role in the issuance of the safe work permit or the work performed by Mr. Saizon. During the hearing on the motion for summary judgment, counsel for Mr. Saizon acknowledged there was no evidence of any wrongdoing by Mr. Grimes and that summary judgment as to Mr. Grimes was appropriate. Moreover, on appeal, Mr. Saizon does not challenge the summary judgment granted in favor of Mr. Grimes. Thus, that portion of the trial court's January 27, 2025 judgment granting summary judgment in favor of Mr. Grimes and dismissing Mr. Saizon's claims against Mr. Grimes is final.

5.   Even assuming for sake of argument that the prior incidents at the LHC-3 Unit were factually similar, this court has held the mere fact an employer is aware of prior similar accidents is insufficient to establish an intentional act. See Carrier v. Grey Wolf Drilling Co., 2000-1335 (La. 1/17/01), 776 So.2d 439, 441-442. Moreover, as the Louisiana Supreme Court explained in in Reeves, “[b]elieving 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.” Reeves, 731 So.2d at 212.

LANIER, J.