A Matter of Control of a Bike Results in No Liability under the LPLA

Historically, Louisiana law provided that a professional rescuer injured in the performance of his or her duties “assumes the risk” of an injury and is not entitled to damages. See Worley v. Winston, 550 So.2d 694, 696 (La. App. 2 Cir.), writ denied, 551 So.2d 1342 (La. 1989). This is known as the Professional Rescuer’s Doctrine and applied as a defense to claims raised by firefighters, policeman, and others. The doctrine prevented recovery because the professional rescuer “assumed the risk” of injury. Recently, the Louisiana Supreme Court in Doe v. McKesson, 2021-00929 (La. 3/25/22) rejected the doctrine as a bar to suit by the professional rescuer.

In Doe, the Supreme Court of Louisiana accepted a certified question from the Fifth Circuit of the United States Court of Appeals as to the viability of the doctrine. In response, the Supreme Court held that the Professional Rescuer’s Doctrine has been abrogated in Louisiana both legislatively under La. C.C. art. 2323 and jurisprudentially in Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La. 1988).

The Court cited La. C.C. art. 2323(A), which provides that the fault of “all persons […] shall be determined” in a civil action. Subsection (B) of the article provides this rule applies “to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.”

In Murray, the Supreme Court previously held that the doctrine of assumption of risk no longer had a place in Louisiana tort law following the adoption of comparative fault. Nevertheless, the Murray Court identified two exceptions:

• Cases “where the plaintiff, by oral or written agreement, expressly waives or releases a future right to recover damages from the defendant,” if “no public policy concerns would invalidate such a waiver, the plaintiff's right to recover damages may be barred on a release theory;” and

• “[I]n the sports spectator or amusement park cases (common law’s “implied primary” assumption of risk cases).”

Murray, 521 So.2d at 1134. (internal citations omitted).

The Doe court observed that Murray provided no exception relative to professional rescuers. The Court further observed that, while the legislature had enacted statutes that bar plaintiff recovery in other settings, no such statute had been passed to codify the Professional Rescuer’s Doctrine.

Although professional rescuers injured in the performance of their duties may still be found at fault, the is no longer an automatic bar to suit.

In Million v. Exxon Mobil, et al., plaintiff was diagnosed with cancer and pulmonary embolisms in 2016. Plaintiff had worked in the chemical industry for 40 years. In his suit, filed in the United States Middle District Court, plaintiff alleged that long-term exposure to toxic chemicals during his employment caused his cancer. While the suit alleged that Million’s former employers created an unsafe work environment, he admitted in deposition that he was provided both safety equipment and safety training during his employment.

Andrew Blanchfield, managing partner at Keogh Cox, represented one of the former employers and filed a motion for summary judgment seeking to enforce the protections of Louisiana worker’s compensation law. Under the law, worker’s compensation benefits are generally an employee’s exclusive remedy against an employer for work-related injuries or illnesses. An employer is therefore entitled to immunity from tort claims unless the employee can prove that employer committed an “intentional act.”

To prevail under an intentional act theory, a plaintiff is required to show that the employer’s act was “intentional” and “substantially certain” to result in injury to the plaintiff. In support of the motion to enforce immunity, the former employers cited to plaintiff’s admissions in deposition as to the efforts made for his safety and to the absence of evidence sufficient to show intentional conduct substantially certain to cause injury. The district court granted the motion and dismissed plaintiff’s claims. This month, the dismissal was upheld by the United States Fifth Circuit Court of Appeal in Million v. Exxon Mobil Corp., Exxon Chem. Co./ Exxon Ref., No. 20-30002, 2020 WL 7054051 (5th Cir. Dec. 1, 2020).

This case illustrates the interplay between general Louisiana tort law and the Louisiana worker’s compensation law and shows that courts will require substantive evidence of an intentional act to maintain a tort suit against an otherwise immune employer.

Chelsea Payne is an associate at Keogh Cox and has been practicing for three years. Her practice mainly relates to construction law and complex litigation. Chelsea enjoys playing tennis and spending time with her family.

The recent decision in Gibson v. Wal-Mart Louisiana, LLC, 20-0033 (La. App. 4 Cir. 8/27/20), 2020 WL 507804 re-affirms that a workers’ compensation claim based on an unwitnessed accident is subject to pretrial dismissal where there is no corroborating evidence.

In Gibson, the plaintiff, a department manager for Walmart, claimed injury while picking up boxes. Although no one witnessed the incident, the plaintiff claimed that two managers working nearby were made aware of the accident and injuries almost immediately.

Walmart denied the claim in response to numerous “red flags.” For example, the two managers identified by the claimant denied any knowledge. Also, the first reference in a medical record to the alleged June accident came in mid-October.

Walmart filed a motion for summary judgment arguing that plaintiff did not satisfy her evidentiary burden. In response, Gibson countered that the conflict between her testimony, the co-workers’ testimony, and the medical records created genuine issues of material fact to be decided at trial. The OWC trial court granted summary judgment and the plaintiff appealed.

In affirming the dismissal, the Fourth Circuit Court determined that Gibson’s testimony, standing alone, did not create a genuine issue of material fact. The general rule regarding unwitnessed accidents in worker’s compensation cases is well defined. Under this rule, an employee may prove by his or her testimony alone that an unwitnessed accident occurred only if the employee can establish that: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So. 3d 215, 218.

Because evidence such as the delay in medical treatment raised doubt and Gibson lacked other corroboration, the dismissal of her claim was upheld. Gibson reminds that questionable unwitnessed accident claims without corroborating evidence can and should be dismissed via pretrial motion, notwithstanding the “relaxed rules of evidence and procedure” in workers’ compensation courts.

Ed Stauss is a partner with Keogh Cox. His practice relates mainly to workers compensation defense and the subrogation recovery. Ed is an avid and long time fan of the professional and major college sports teams in the area. He also enjoys running year-round, from 2 milers & 5Ks in the spring and summer to half marathons and full marathons in the fall and winter.