                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 17, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk
                            No. 05-30306

                          Summary Calendar
                      ))))))))))))))))))))))))))

RANDALL E. DARK; TONI DARK,

                Plaintiffs–Appellants,

     v.

GEORGIA-PACIFIC CORPORATION,

                Defendant–Appellee.


           Appeal from the United States District Court
               for the Middle District of Louisiana
                 District Court No. CV:03-820-D-M2



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants Randall E. Dark and Mrs. Toni Dark

(collectively “Dark”) seek review of the district court’s order,

which granted Defendant-Appellee Georgia-Pacific Corporation’s

(“Georgia-Pacific”) motion for summary judgment.    For the reasons

stated below, we AFFIRM the judgment of the district court.

     Mr. Randall Dark, a converting supervisor for Georgia-

Pacific, was injured while working at a paper mill operated by


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
Georgia-Pacific.   The paper mill contains large machines called

“converters” that process paper into its final product.

Underneath the converters, below the floor surface, are pits that

allow access to the machines for maintenance and repair.   The

openings to the pits are covered with a silver-colored metal

called “diamondback.”   Customarily, and at the time of Mr. Dark’s

injury described below, when a converter is being serviced or

repaired, the diamondback covering is flipped open and propped

back at a 45-degree angle.   This leaves an opening at floor

level.   Two bright yellow poles are placed at the edge of the

opening.

     On November 19, 2002, after he had been employed at the mill

for approximately one month, Mr. Dark was walking though the mill

to check on a converter that had been out of service.   In the

course of this task, Mr. Dark fell seven feet into the then-open

converter pit, injuring his ankle.   Dark is seeking loss of

wages, pain and suffering, medical expenses, medical

transportation costs, mental anguish, loss of consortium and all

other damages allowed by Louisiana law.   Georgia-Pacific admits

that Mr. Dark was injured during the course and scope of his

employment, but asserts that Dark’s claims are barred by the

exclusive remedy provision of Louisiana’s Workers’ Compensation

laws.

     As jurisdiction in federal court is founded on diversity,



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Louisiana law applies.    See DP Solutions, Inc. v. Rollins, Inc.,

353 F.3d 421, 427 (5th Cir. 2003).

       “We review the grant of summary judgment de novo, applying

the same legal standards as the district court applied to

determine whether summary judgment was appropriate.”      Am. Int’l

Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 259-

60 (5th Cir. 2003).    Summary judgment is proper when, “viewing

the evidence in the light most favorable to the nonmoving party,

there is no genuine issue as to any material fact and [ ] the

moving party is entitled to judgment as a matter of law.”      Id. at

260 (internal citations and quotations omitted).

       The Louisiana Workers’ Compensation Act provides that

workers’ compensation is an employee’s exclusive remedy against

an employer for injuries incurred in the normal course and scope

of his employment, unless the injury resulted from an intentional

act.    LA. REV. STAT. ANN. § 23:1032(A)-(B); Reeves v. Structural

Pres. Sys., 731 So. 2d 208, 210 (La. 1999).     For purposes of the

intentional act exception, Louisiana courts have defined an

intentional act as one in which the actor either “(1)

consciously desire[s] the physical result of his act, whatever

the likelihood of the result happening from his conduct, or (2)

know[s] that the result is substantially certain to follow from

his conduct, whatever his desire may be as to that result.”

Abney v. Exxon Corp., 755 So. 2d 283, 288 (La. Ct. App. 1999);


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see Robinson v. N. Am. Salt Co., 865 So. 2d 98, 104 (La. Ct. App.

2003).    “‘[S]ubstantial certainty’ requires more than a

reasonable probability.     The injury must be inevitable.”   Abney,

755 So. 2d. at 288.    In interpreting the intentional act

exception narrowly, the Louisiana Supreme Court has noted that

the section 23:1032(B) exception was not designed for acts that

were wanton, reckless or grossly negligent.     Reeves, 731 So. 2d

at 213.    In fact, an employer’s violation of safety standards,

without more, is not sufficient to fall within the exception.

Abney, 755 So. 2d at 288.

     Dark argues that his injury was the result of an intentional

act falling within the 23:1032(B) exception, which would expand

the potential scope of his recovery.     He contends that there was

no barrier around the pit door when it was open and points out

that the pit door, pit walls and floor surface were all the same

color.    Dark argues that this situation created a dangerous

condition, and that Georgia-Pacific knew of the dangerous

condition.    Dark points out that in the past there were two or

three “near-misses,” where other employees had been close to

falling into a pit.    Dark claims that Georgia-Pacific either

consciously desired the physical result of its act or knew that

the result was substantially certain to follow from its act.

     We disagree.   Mr. Dark’s injury was not the result of an

intentional act, as defined by Louisiana law.


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     [E]mployers are not liable under the intentional act
     exception for violations of safety standards or for
     failing to provide safety equipment. . . . Believing 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 211-12.

     Louisiana courts have found no substantial certainty of

injury in conditions more egregious than the one here.   See id.

(requesting an employee to manually move a sandblasting pot that

weighed hundreds of pounds was not an intentional act); Hirst v.

Thieneman, 905 So. 2d 343 (La. Ct. App. 2005)(electrocution and

death of roofing subcontractor’s employee who was guiding crane

cable in close proximity to high voltage overhead power line

while the subcontractor’s supervisor was on site and did nothing

to prevent the accident was not an intentional act); Brown v.

Pennzoil-Quaker State Co., 175 S.W.3d 431 (Tex. App.

2005)(explosion caused by rupture in heat exchanger at Louisiana

oil refinery was not an intentional act of oil company under

Louisiana law); Barnett v. Meridian Res. & Exploration Co., 815

So. 2d 1016 (La. Ct. App. 2002)(heater treater in an oilfield did

not have a blow down valve; resulting fire of natural gas was not

an intentional act).   Furthermore, if an act has occurred

numerous times and not resulted in injury, then an injury is not

substantially certain to occur.   See Barnett, 815 So. 2d at 1027.


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The pits have been open numerous times at the paper mill, and

there have been no other injuries resulting from employees

falling into those pits.

     For the reasons above, we affirm the judgment of the

district court.

AFFIRMED.




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