     Case: 10-30667 Document: 00511376439 Page: 1 Date Filed: 02/09/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 9, 2011
                                     No. 10-30667
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




JAMES WESTERFIELD,

                                                   Plaintiff-Appellant,

versus

BRAND ENERGY SOLUTIONS, L.L.C.;
BRAND SERVICES, INCORPORATED; ABC INSURER,

                                                   Defendants-Appellees.




                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                                  No. 3:08-CV-174




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       James Westerfield sued his employer, Brand Energy Solutions, L.L.C.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 10-30667

(“Brand”), for injuries from a fall from scaffolding at a work site. The district
court granted summary judgment to Brand under the Louisiana Workers’ Com-
pensation Act (“LWCA”) because Westerfield could not show that Brand had
committed an intentional tort. We find no error and affirm.


                                        I.
      Brand hired Westerfield to assist with disassembling the scaffolding on the
roof of a worksite. The foreman told Westerfield to climb down the scaffolding
legs, rather than using the ladder and safety clamps, because it was faster. Sev-
eral hours later, Westerfield fell approximately twenty feet while attempting to
climb down. The fall broke his ankle, cut his forehead, and caused abrasions on
his arms. Although he protested that he should not be moved, the foreman in-
structed several employees to move him to a position near the foot of the ladder.
One Brand employee testified that was “[t]o cover what really happened” and to
make it look as though Westerfield had fallen from the ladder.
      Westerfield sued Brand in state court, claiming that the foreman and oth-
er employees had committed an intentional tort and that Brand is vicariously
liable for its employees’ actions. The case was removed, whereupon Brand
moved for summary judgment on the ground that Westerfield could not show the
existence of an intentional tort and that the action was therefore barred by the
LWCA. See La. Rev. Stat. § 23:1032. Westerfield failed to file a response within
the deadline prescribed by local rule, so the court deemed the motion to be unop-
posed and granted summary judgment. Seven days later, Westerfield moved to
amend under Federal Rule of Civil Procedure 59(e), attaching a response to the
summary judgment motion with a number of exhibits as evidentiary support.
The court denied the motion.




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                                  No. 10-30667

                                        II.
      There are two possible standards for review of a motion to amend a ruling
on summary judgment. The district court has discretion to review any new ma-
terials attached to the motion. Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324
(5th Cir. 1994). Thus, if the motion is denied because of a refusal to consider the
new evidence, we apply the abuse-of-discretion standard. If the court considers
the new evidence and still grants summary judgment, we must consider all the
materials, and we review the summary judgment de novo.
      The district court did not state the grounds on which it denied the motion
to amend. That omission is insignificant, however, because even under the de
novo standard and considering the new evidence, the summary judgment was
proper.
      “Summary judgment is appropriate if no genuine issue of material fact ex-
ists and the moving party is entitled to judgment as a matter of law.” Templet
v. Hydrochem Inc., 367 F.3d 473, 477 (5th Cir. 2004). To survive the motion, the
non-movant must “go beyond the pleadings and come forward with specific facts
indicating a genuine issue for trial.” Id. A genuine issue exists “when the evi-
dence is such that a reasonable jury could return a verdict for the non-movant.”
Id. “Summary judgment is appropriate, however, if the non-movant ‘fails to
make a showing sufficient to establish the existence of an element essential to
that party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)). We view “the evidence in a light most favorable to the non-movant.” Id.
      To avoid summary judgment, Westerfield must show a genuine issue of
material fact about whether Brand committed an intentional tort. See La. Rev.
Stat. § 23:1032. Westerfield argues that Brand committed an intentional tort
when its employees moved Westerfield against his will while he was injured.
Westerfield is correct that an actor commits a battery if he causes a “harmful or
offensive contact” with another person “without the other’s consent.” Caudle v.

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                                          No. 10-30667

Betts, 512 So. 2d 389, 391 (La. 1987). Unlike most common law jurisdictions,
however, LouisianaSSa civil law jurisdictionSS“does not award nominal damages
for the mere invasion of a right, no actual damage having resulted.” 1 To recover,
Westerfield must therefore show that Brand’s intentional tort caused damages.2
       Westerfield cannot do so, because the evidence shows that all his injuries
were caused by his fall, not by the employees who moved him. He testified that
“the extent of the injuries had already occurred” before the employees even
touched him, and he could not say whether he was hurt further thereafter. An-
other employee testified that Westerfield was in pain when he was being moved
but did not say whether the movement made the pain worse or was only a prod-
uct of the fall. Westerfield provided no other evidence of damages from the de-
cision to move him, so he has not established a genuine issue of material fact,
because no reasonable jury could find the existence of damages on the summary
judgment record.
       Accordingly, the summary judgment is AFFIRMED.




       1
           12 La. Civ. L. Treatise, Tort Law § 3:4 (2d ed. rev. 2010).
       2
         Caudle, 512 So. 2d at 391 (“[W]hen an employee seeks to recover from his employer
for an intentional tort, a court must apply the legal precepts of general tort law related to the
particular intentional tort alleged in order to determine whether he has proved his cause of
action and damages recoverable thereunder.” (emphasis added)).

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