Boudeloche v. Grow Chemical Coatings Corp., 83-3173
| Decision Date | 02 April 1984 |
| Docket Number | No. 83-3173,83-3173 |
| Citation | 728 F.2d 759 |
| Parties | Julius John BOUDELOCHE, Plaintiff-Appellant, v. GROW CHEMICAL COATINGS CORP., etc., et al., Defendants, and Brown & Root, Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John F. McKay, Baton Rouge, La., for plaintiff-appellant.
Brian G. Meissner, New Orleans, La., for Brown & Root, Inc.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, GEE and WILLIAMS, Circuit Judges.
Appellant filed suit against his employer, Brown & Root, Inc. for injuries allegedly sustained after being ordered by his Brown & Root supervisor to paint the interior of a tank without the benefit of ventilation equipment. The cause of action was based on the "intentional act" exception to the Louisiana Workmen's Compensation statute. La.Rev.Stat.Ann. Sec. 23:1032 (West 1976). The district court dismissed the action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). We reverse.
On March 3, 1978, appellant Julius John Boudeloche, while employed by Brown & Root, Inc. was working at a construction site in Taft, Louisiana. He was instructed by his supervisor to paint the interior of a partially enclosed cylinder shaped tank. The tank was approximately fifteen feet high and contained two manholes. When ordered to perform the job, Boudeloche requested that air blowers and respirators be supplied to insure that the job could be performed safely within the enclosed area. This request was denied, and Boudeloche was ordered by his Brown & Root supervisor to begin work without the safety equipment.
Boudeloche asserts that after working in the tank for a short time, both he and his assistant became dizzy and nauseated. He purportedly advised his supervisor of his condition, but was ordered to continue working. He asserts that by noon he had become ill to the point where he was vomiting blood. He again informed his supervisor of his condition. He allegedly was told to return to the tank to finish the job or leave the plant.
Boudeloche filed suit in the United States District Court for the Eastern District of Louisiana based on diversity jurisdiction. Named as defendants were Tnemec Company, Inc., Grow Chemical Coatings Corporation, 1 and Ashland Chemical, Inc. He sought recovery for injuries resulting from inhalation of the fumes which were released from the paint, paint primer, and thinner mixture used to paint the interior of the tank. He alleged that these fumes caused severe damage to his nervous system and body organs.
Boudeloche subsequently amended his original complaint to add as a defendant, Brown & Root, Inc. The district court dismissed the claim against Brown & Root for failure to state a claim, holding that Boudeloche's exclusive remedy against Brown & Root was under the Louisiana Workmen's Compensation statute. Boudeloche appeals the district court's dismissal of his action against Brown & Root.
Under Louisiana law, in order to avoid the general rule that an employee's exclusive remedy for a job related injury is worker's compensation, the employee must prove that the injury resulted from an intentional act. La.R.S. 23:1032; 2 Bazley v. Tortorich, 397 So.2d 475 (La.1981).
In Bazley, supra, the Louisiana Supreme Court broadened the definition of "intentional act" as it applies to Sec. 23:1032. The court expressly disapproved the previous standard required by Louisiana courts that the "plaintiff prove, in order to recover, that the defendant desired the physical results of his act in every case." The court stated:
The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act, or believed that they were substantially certain to follow from what he did... Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. Restatement (Second) of Torts, Sec. 8A, Comment; Prosser [Law of Torts] Sec. 8.
Id. at 482. 3
Paragraph 9 of the appellant's complaint plainly stated the facts of the case:
On the 3rd day of March, 1978, plaintiff, Julius Boudeloche, while in the employ of Brown & Root, Inc. at the construction site at Taft, Louisiana, was painting the interior surface of a large tank with a paint primed, '77 Chem-Prime, a phenolic fortified alkyd, manufactured by defendant, Tnemec Company, Inc., and purchased from defendant for this job by Brown & Root, Inc., this primer was mixed with a touluene thinner purchased from Ashland Chemical, Inc. by Brown & Root for this job. In this process of painting the structure, plaintiff inhaled fumes released from the primer and thinner mixture. After several hours, plaintiff became ill and left the tank to inform his supervisors of the situation. At which time, defendant, Horace Blackledge, his supervisor informed him that if he did not get back into the tank to finish the painting, that he would be fired. Plaintiff re-entered the tank and inhaled more fumes. The inhalation of said fumes in both instances, proximately caused the injuries and accident herein sued upon.
In addition, paragraph 10A of the appellant's amended complaint stated:
Plaintiff avers that the intentional ordering of plaintiff by his supervisors to return to work in an unsafe area was also a proximate cause of the injuries sustained by plaintiff and that Brown & Root, Inc., as well as unknown officers, directors, supervisors, and/or other employees, are strictly liable in tort for the accident, injuries and expenses caused by the intentional tort by employees of Brown & Root, Inc., in the following particulars; among others to be shown at the time of trial:
1. Intentionally ordering plaintiff to return to work in a tank containing dangerous fumes with the knowledge of such dangerous fumes;
2. Failing to provide adequate safety equipment,...
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...claim, the complaint cannot be dismissed so long as the complaint states a claim. Clark, 794 F.2d at 970; Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759, 762 (5th Cir. 1984). "To qualify for dismissal under Rule 12(b)(6), a complaint must on its face show a bar to relief." Clark, 794......
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...be characterized at most as grossly negligent or wanton; exclusive remedy is workers' compensation). But see Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759 (5th Cir.1984) (pleading alleging that supervisor ordered employee to continue painting interior of tank despite fact that toxic......
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Grillo v. National Bank of Washington
...act and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.'" Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759, 761 (5th Cir. 1984) (quoting Bazley v. Tortorich, 397 So.2d 475, 482 (La. 1981)).20 These cases, however, do not involve an injury ......
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Colburn v. Upper Darby Tp.
...goes ahead, he is treated by the law as if he had in fact desired to produce the result. 1 Id. See also Boudeloche v. Grow Chemical Coatings Corp., 728 F.2d 759, 761 (5th Cir.1984). Also of concern to me is the majority opinion's departure from our precedents which require that civil rights......