     Case: 13-31208      Document: 00512693447         Page: 1    Date Filed: 07/10/2014




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

                                    No. 13-31208                               FILED
                                  Summary Calendar                         July 10, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
LONNIE HARPER,

                                                 Plaintiff - Appellant
v.

BOISE PAPER HOLDINGS, L.L.C.,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:13-CV-2537


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       This is an appeal from a Rule 12(b)(6) dismissal of a tort case brought by
the employee against the former employer. Finding no error, we AFFIRM.
       I.     FACTUAL AND PROCEDURAL HISTORY
       On August 6, 2012, Plaintiff-Appellant Lonnie Harper (“Harper”) was
employed by the Boise Paper Mill, which was then owned by Boise Paper
Holdings, L.L.C. (“Boise”). That day, Harper was operating a lime kiln grinder


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-31208    Document: 00512693447     Page: 2   Date Filed: 07/10/2014



                                 No. 13-31208
and an alarm sounded, indicating that the grinder had shut down because it
had become clogged. Harper inspected the grinder and observed materials that
were too large to pass through it. Boise and its maintenance contractor had
placed a 50-pound pry bar at the site for the purpose of dislodging material
that clogged the grinder. Using this pry bar, Harper attempted to dislodge the
material clogging the grinder, and a large amount of material hit the pry bar,
which struck his head. He suffered a serious head and brain injury and was
air-lifted by helicopter to St. Patrick’s Hospital in Lake Charles, Louisiana.
      Additionally, on the day of the accident, Boise sent its safety director,
David Ludolph (“Ludolph”) to the hospital.       Harper alleges that Ludolph
“assumed manipulative control over the care being rendered to” Harper.
Ludolph had Boise’s company doctor, Dr. Taylor, release Harper “to work in an
effort to obfuscate and masquerade around the fact that this catastrophic event
resulted in lost man hours.” Acting on Boise’s behalf, Ludolph demanded that
Harper return to work even though Harper was in critical condition because
Boise did not want to record a “lost time accident.”
      On July 30, 2013, Harper brought a tort action in the 36th Judicial
District Court for the Parish of Beauregard against Boise. 1 Harper alleged
that Boise was liable for the “intentional tort associated with the removal of
safeguards that resulted in the injuries and damages” he suffered. Harper also
alleged that Boise was liable for Ludolph’s intentional infliction of emotional
distress. Boise removed the suit to the United States District Court for the
Western District of Louisiana, alleging complete diversity of citizenship. Boise
filed a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. On November 14, 2013, the district



      1 Harper also named Metso Paper USA. However, Harper voluntarily dismissed
Metso Paper USA on September 26, 2013.
                                       2
    Case: 13-31208     Document: 00512693447       Page: 3   Date Filed: 07/10/2014



                                  No. 13-31208
court granted the motion and dismissed Harper’s complaint for failure to state
a claim. Harper filed a timely notice of appeal.
      II.   ANALYSIS
            A. Intentional Tort
      Harper contends that the district court erred in dismissing his complaint
for failure to state a claim. We review de novo a dismissal for failure to state
a claim, applying the standard used to review a dismissal under Rule 12(b)(6).
Hart v. Hairston, 343 F.3d 762, 763–64 (5th Cir. 2003). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “Factual
allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).”   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and footnote omitted).
      The Supreme Court of Louisiana has explained that: “(1) under the
provisions of Louisiana Revised Statues § 23:1032, a worker is ordinarily
limited to recovering workers’ compensation benefits rather than tort damages
for work-related injuries; and (2) Section 1032(B) provides an exception to this
exclusivity when a worker is injured as a result of an employer’s intentional
act.” Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir.
2006) (citing Cole v. State Dep’t of Public Safety and Corrections, 825 So. 2d
1134 (La. 2002)). The exception to the rule allows an employee who suffers an
intentional battery at the hands of a co-worker to obtain tort recovery. Id. The
term “intentional” means that the tortfeasor “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


                                        3
    Case: 13-31208    Document: 00512693447      Page: 4   Date Filed: 07/10/2014



                                 No. 13-31208
his conduct, whatever his desire may be as to that result.” Id. (citations and
internal quotation marks omitted).
      Harper’s complaint did not allege that Boise consciously desired that he
would sustain his injuries. Instead, Harper alleged that Boise “knew or should
have known that an injury was [s]o imminent that Boise’s neglect became an
intentional risk to every operator associated with the lime kiln.” Petition at
¶ 22. To the extent that Harper argues that Boise should have known that he
would be injured, he is simply alleging a negligence claim and thus fails to
state a claim for an intentional tort. See Kent v. Gulf States Utils. Co., 418
So. 2d 493, 497 (La. 1982) (explaining that in a typical negligence case, the
plaintiff must prove that the defendant knew or should have known of the
risk). Indeed, even gross negligence does not state a claim for an intentional
tort. Gallant v. Transcontinental Drilling Co., 471 So. 2d 858, 861 (La. App.
2d Cir. 1985) (gross negligence is an inadequate basis to find that the employer
knew to a substantial certainty that its conduct would cause injury).
      To the extent Harper argues that Boise knew he would be injured, his
complaint does not allege facts to show that his injuries were substantially
certain to follow. The Louisiana Supreme Court has explained that the phrase
“substantially certain to follow” means more than a reasonable probability that
an injury will occur, and “certain” is defined as “inevitable or incapable of
failing.” Reeves v. Structural Preservation Systems, 731 So. 2d 208, 213 (La.
1999) (internal quotation marks and citations omitted).        The Court cited
precedent holding that an employer’s knowledge that the use of a dangerous
machine creates a high probability that an employee would be injured is
insufficient to meet the substantial certainty test. Id. at 213.
      More specifically, the Louisiana Supreme Court recognized that an
intentional tort was found when an employer repeatedly exposed the employee
to a chemical, and the chemical had sickened the employee on two prior
                                        4
    Case: 13-31208     Document: 00512693447     Page: 5   Date Filed: 07/10/2014



                                  No. 13-31208
occasions. Id. at 212 (citing Trahan v. Trans–Louisiana Gas Co., Inc., 618 So.
2d 30, 31–32 (La. App. 3d Cir. 1993)). In a similar vein, an intentional tort was
found when an employer ordered an employee to work in a ditch that had
imploded the previous day, had not been reinforced, and appeared as if it would
implode again. Id. (citing Wainwright v. Moreno’s, Inc., 602 So. 2d 734, 739
(La. App. 3d Cir. 1992)).
      On the other hand, the Louisiana Supreme Court contrasted cases in
which it was held that violations of safety standards or failing to provide safety
equipment did not establish that the employer knew to a substantial certainty
that an injury would occur. Id. (collecting cases). For example, in Williams v.
Gervais F. Favrot Co., Inc., two employers were killed when a rebar cage fell
from the twenty-second floor of a building under construction. 573 So. 2d 533,
534 (La. App. 4th Cir.), writ denied, 576 So. 2d 49 (La. 1991). One employee
was inside the cage as it was lifted, and the other employee worker stood on
the form to guide the cage. Id. at 536. The form had not been braced, and the
form with the cage fell off of the building. The “braces were for safety and
proper alignment.” Id. at 537. The superintendent admitted that the “crane
should not have lifted the cage with a worker inside, and the danger from an
unbraced form should have been obvious to a carpenter foreman if he were
watching.” Id. at 536. Nonetheless, the Louisiana appellate court held that
the employer did not know to a substantial certainty that an injury would
occur. Id. at 542.
      Here, the facts alleged in Harper’s complaint fall in line with the cases
that held that violations of safety standards or failing to provide safety
equipment did not demonstrate that the employer knew to a substantial
certainty that an injury would occur. Harper’s argument that the instant tort




                                        5
     Case: 13-31208       Document: 00512693447         Page: 6    Date Filed: 07/10/2014



                                      No. 13-31208
claim constitutes an intentional tort is without merit. 2 Thus, this claim does
not fall within the exception to the rule that limits recovery to workers’
compensation benefits.
              B. Intentional Infliction of Emotional Distress
       Harper also contends that the district court erred in dismissing his claim
of intentional infliction of emotional distress for failure to state a claim under
Rule 12(b)(6). For a plaintiff to recover for the tort of intentional infliction of
emotional distress, he must demonstrate “(1) that the conduct of the defendant
was extreme and outrageous; (2) that the emotional distress suffered by the
plaintiff was severe; and (3) that the defendant desired to inflict severe
emotional distress or knew that severe emotional distress would be certain or
substantially certain to result from his conduct.” White v. Monsanto Co., 585
So. 2d 1205, 1209 (La. 1991). The Louisiana Supreme Court has recognized
that, in a workplace environment, the tort of intentional infliction of emotional
distress is generally “limited to cases involving a pattern of deliberate,
repeated harassment over a period of time.” Id. at 1210.
       In his complaint, Harper alleged that Ludolph “literally demanded that
[he] return to work while he was in a critical condition because of his head
injury for no other purpose than to pretend for industrial purposes that there
was no ‘lost time accident.’” Petition at ¶ 17 (emphasis added). Harper further
alleged that Ludolph, in his capacity as the safety supervisor, intended to
inflict emotional distress when he valued “corporate profits over patient safety
in an effort to hide the fact of this injury and the fact that this injury was a
‘lost time accident’ for the papermill.” Id.



       2Harper also refers to a finding against Boise made by the Occupational Safety &
Health Administration (“OSHA”). However, a violation of OSHA standards is not an
adequate basis for finding that the employer knew to a substantial certainty that its conduct
would cause injury or death. Williams, 573 So. 2d at 541.
                                             6
    Case: 13-31208    Document: 00512693447     Page: 7   Date Filed: 07/10/2014



                                 No. 13-31208
      We first note that Harper’s complaint does not allege a pattern of
deliberate, repeated harassment over a period of time in the workplace. White,
585 So. 2d at 1210. Instead, Harper alleges a single instance of Ludolph
demanding that he return to work. Moreover, even assuming arguendo that
Harper has shown that Ludolph’s demand was extreme and outrageous and
that he suffered severe emotional distress, Harper has failed to allege the third
element of intentional infliction of emotional distress—that Ludolph intended
to inflict the emotional distress. Indeed, as set forth above, Harper’s complaint
alleges that Ludolph’s demand to return to work had “no other purpose than
to pretend for industrial purposes that there was no ‘lost time accident.’”
Petition at ¶ 17. The complaint therefore admits that Ludolph did not demand
that Harper return to work for the purpose of inflicting severe emotional
distress. Harper’s complaint fails to state a claim for intentional infliction of
emotional distress.
      Accordingly, the judgment of the district court is AFFIRMED.




                                       7
