                      UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                                No. 01-30985
                              Summary Calendar


                      ROLAND A ROMERO; SANDY ROMERO,

                                                    Plaintiffs-Appellants,


                                      VERSUS


                         NORTHROP GRUMMAN CORP.,

                                                          Defendant-Appellee.




            Appeal from the United States District Court
                For the Western District of Louisiana
                                 (99-CV-624)
                                June 13, 2002


Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

      Roland A. Romero and his wife, Sandy Romero, appeal the
district    court’s    ruling    in    favor   of   the    Northrop    Grumman
Corporation (hereinafter “Northrop”) dismissing the Romeros’ claim
for intentional injury, and the derivative claim for loss of


*
 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not be published and is not precedent except under the limited circumstances set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.

                                        -1-
consortium.       The Romeros contend that the district court erred in
finding    that    Mr.    Romero’s     unprotected      exposure     to   hazardous
chemicals did not render injury substantially certain to occur.
The Romeros further contend that in applying the substantial
certainty test, the district court erred in requiring them to show
that Northrop knew that an injury would, in fact, occur.                     For the
reasons that follow, we disagree. We therefore affirm the judgment
of the district court.
                                    BACKGROUND
      In 1992, Northrop began operating an aircraft maintenance
facility in Lake Charles, Louisiana.                 Mr. Romero, a seasoned
mechanic with a long history of working in heavy industry, began
working at Northrop’s Lake Charles facility in November 1997, as an
aircraft mechanic, and continued his employment there through March
25, 1998.     On March 26, 1998, Mr. Romero reported to the hospital
with complaints of dizziness and nausea. In April 1998, Mr, Romero
applied    for    disability    and    medical    benefits    under       Northrop’s
disability       and   healthcare     programs,   and    received     a    total   of
$5,194.74 plus medical expenses. In January 1999, Mr. Romero filed
a   workers      compensation   suit     in    Louisiana     state    court,       and
subsequently received a judgment awarding him workers’ compensation
benefits. In March 1999, the Romeros filed suit in Louisiana state
court alleging an intentional tort outside the scope of Louisiana’s
workers’ compensation laws; specifically, that Northrop required
Mr. Romero to work with dangerous chemicals, and failed to provide
safety training prior to his exposure to the chemicals.
      Based upon diversity of citizenship, Northrop removed the suit
to federal district court, and moved for dismissal pursuant to Rule
12(b)(6), failure to state a claim upon which relief can be
granted.      The district court denied Northrop’s motion upon a

                                         -2-
finding that the allegations in the Romeros’ complaint satisfied
the substantial certainty test set forth in Bazley v. Tortorich,
397 So.2d 475 (La. 1981), and were sufficient to defeat a motion
under Rule 12.          Following the denial of its Rule 12 motion,
Northrop filed a motion for summary judgment.                The district court
granted summary judgment in favor of Northrop upon the findings
that: (1) the Romeros failed to present any “evidence that [Mr.]
Romero’s      supervisors    required    him    to    work   with   the   various
chemicals knowing that he would inevitably become ill;” and (2) the
Romeros’ affidavits did not “establish that Northrop knew that
illness was substantially certain to follow working with the
chemicals used in their facility”.             The Romeros now challenge the
district court’s ruling.
                              STANDARD OF REVIEW
       We review a district court’s grant of summary judgment de
novo.   Evans v. City of Houston, 246 F.3d 344, 347 (5th Cir. 2001).
“On summary judgment the inferences to be drawn from the underlying
facts . . . must be viewed in the light most favorable to the party
opposing the motion.”         United States v. Diebold, Inc., 369 U.S.
654,    655   (1962).       Summary   judgment       is   appropriate     “if   the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”                  FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986).
                                   ANALYSIS
       The Romeros assert that the district court erred in granting
summary judgment on their intentional tort claim in favor of
Northrop.      In support of this assertion, the Romeros contend that


                                        -3-
summary judgment was inappropriate because the evidence established
that a genuine issue of material fact existed as to whether
Northrop knew that Mr. Romero was substantially certain to become
ill as a result of continued exposure to hazardous substances at
the Lake Charles facility.            The Romeros further contend that the
district court improperly applied the substantial certainty test in
that the district court erroneously raised the Romeros’ burden of
proof to require a showing that Northrop knew that an injury would,
in fact, occur.
       “In a diversity case state law provides the elements of the
plaintiff’s case.”         Thrash v. State Farm Fire & Cas. Co., 992 F.2d
1354, 1356 (5th Cir. 1993) (citation omitted).                  Under Louisiana
law, workers’ compensation provides the exclusive remedy against an
employer,       or   any   officer,   director,      stockholder,    partner     or
employee of such employer or principal when an employee suffers a
work-related injury unless the injury results from an intentional
act.     LA. REV. STAT. ANN. § 23:1032A(1)(a) and             1032B (West 1998).
The Louisiana Supreme Court instructs that the word intent means
“that the person who acts 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 his conduct, whatever his
desire may be as to that result.”             Bazley, 397 So.2d at 481.        Thus,
“[o]nly where the actor entertained a desire to bring about the
consequences that followed or where the actor believed that the
result    was    substantially    certain       to   follow   has   an   act   been
characterized as intentional.”           Id.
       The Romeros do not contend that Northrop desired to cause any
illness to Mr. Romero, but rather they argue that Northrop knew,


                                        -4-
with substantial certainty, that Mr. Romero’s continued unprotected
exposure to hazardous substances used in the Lake Charles facility
would result in illness.      In support of this argument, the Romeros
maintain that prior to Mr. Romero’s November 1997 employment date,
Northrop was aware of the hazards associated with the chemicals
used by aircraft mechanics at the Lake Charles facility but failed
to provide safety training, protective safety equipment, and a safe
working environment.
     Specifically, the Romeros assert that the adverse health
effects of the chemicals used at the Lake Charles facility were
outlined in    the   material   data    safety   sheets    provided   by    the
chemical manufacturers, and retained in Northrop’s library.                Mr.
Romero testified that on one occasion he removed his head from a
wing tip to get some fresh air, and his supervisor commented
something to the effect of “you better watch that stuff, it will
get you.”      Mr. Romero testified that on another occasion his
supervisor ordered him to continue working without a respirator
despite having been told by a Northrop safety monitor that Mr.
Romero was not properly certified to perform the specific job task
because   he   was   not   respirator     certified.      The   Romeros    also
presented affidavits from former Northrop employees alleging that
hazardous chemicals were improperly used at the Lake Charles
facility, Northrop’s safety procedures were routinely violated, and
that Northrop’s supervisors and managers were informed of the
improper handling, safety violations, and health risks associated
therewith.     Accordingly, the Romeros contend that this evidence
created a genuine issue of material fact as to whether Northrop was
substantially certain that illness would result from unprotected
over-exposure to the hazardous chemicals used by the aircraft



                                    -5-
mechanics at the Lake Charles facility, and thus renders summary
judgment inappropriate.
     Northrop, however, argues that the Romeros failed to carry
their burden of showing that Northrop was substantially certain
that Mr. Romero would become ill from performing his work functions
in the working environment at the Lake Charles facility.                         To the
contrary, Northrop contends that the evidence shows that it was
substantially certain that the working environment at the Lake
Charles facility would not cause any disabling illness to Mr.
Romero.
     Northrop      presented      its    Occupational           Safety      &     Health
Administration (hereinafter “OSHA”) annual reports from the date
the Lake Charles facility opened in 1992 through October 17, 2000,
showing that of the 743 reported incidents during that time period,
Mr. Romero was the only employee to report an illness from chemical
exposure.       Northrop    presented         affidavits    from      Mr.       Romero’s
supervisors stating that they had personally worked in the same
environment in which they asked Mr. Romero to work, under the same
conditions without any respirator protection, and for much longer
periods of time. The affidavits also stated that hundreds of other
employees had worked in the same conditions, and that neither Mr.
Romero nor any other employee had ever complained of any ill
effects from     exposure    to   chemicals       used     in   the   Lake       Charles
facility prior to Mr. Romero reporting to the hospital on March 26,
1998, with complaints of dizziness and nausea.                  Finally, Northrop
concedes that the Romeros’ evidence may show negligence but argues
that it falls far short of showing that Northrop consciously
desired the illness suffered by Mr. Romero or knew with substantial
certainty   that    Mr.    Romero’s     illness      would       result     from     his
performance of his work functions at the Lake Charles facility.

                                        -6-
      The    intentional        act   exception      to   Louisiana’s      workers’
compensation law has been very narrowly construed by Louisiana’s
courts.     See Reeves v. Structural Pres. Sys., 731 So.2d 208, 211
(La. 1999); Bridges v. Carl E. Woodward, Inc., 663 So.2d 458, 463
(La. Ct. App. 4th Cir. 1995), writ denied, 666 So.2d 674 (La.
1996).      “‘Substantially certain to follow’ requires more than a
reasonable probability that an injury will occur and ‘certain’ has
been defined to mean ‘inevitable’ or ‘incapable of failing.’”
Reeves, 731 So.2d at 213 (citation omitted).                 “A distinguishing
feature in determining whether the conduct complained of meets the
‘substantial certainty’ test is whether the event has occurred
before or whether the injury has manifested itself before.”                  Abney
v. Exxon Corp., 755 So.2d 283, 288 (La. Ct. App. 1st Cir. 1999),
writ denied, 753 So.2d 216 (La. 2000).
      In the instant case, the Romeros presented evidence that: (1)
the material data safety sheets maintained in Northrop’s library
outlined the adverse health risks associated with the chemicals
used at the Lake Charles facility; (2) safety procedures at the
Lake Charles facility were routinely violated; and (3) Northrop’s
managers and supervisors were informed of the safety violations and
associated health risks.          Although this evidence may be persuasive
in showing that Northrop was negligent, or even grossly negligent
in its handling of hazardous chemicals, it fails to show an
intentional act falling within the intentional act exception to the
Louisiana’s workers’ compensation law.               See Reeves, 731 So.2d at
211   (stating    that    Louisiana      courts      of   appeal   “have     almost
universally      held    that    employers     are    not   liable   under     the
intentional act exception for violations of safety standards or for
failing to provide safety equipment); Williams v. Gervais F. Favrot


                                         -7-
Co., Inc., 573 So.2d 533 (La. Ct. App. 4th Cir. 1991), writ denied,
576 So.2d 49 (La. 1991) (finding no intentional act exception for
violations of OSHA and other accepted industry safety standards);
Jacobsen v. Southeast Distribs., Inc., 413 So.2d 995 (La. Ct. App.
4th Cir. 1982), writ denied, 415 So.2d 953 (La. 1982) (finding that
failure to supply requested safety equipment was not an intentional
tort within     the   meaning     of   the    intentional    act   exception     to
Louisiana’s workers’ compensation law).
     Northrop’s argument, however, that it lacked knowledge that
Mr. Romero     was    substantially     certain      to   become   ill   from   his
exposure to the chemicals used in the Lake Charles facility is well
received. Northrop presented OSHA reports indicating that from the
time the Lake Charles facility opened in 1992, not a single
employee had ever reported an illness resulting from exposure to
the chemicals used at the facility until Mr. Romero’s incident.
Furthermore,     Northrop      presented      affidavits    from   Mr.   Romero’s
supervisors indicating that they personally performed the same work
as requested of Mr. Romero in the same environment, under the same
conditions     without   any    respirator      protection,     and   for   longer
periods of time; all without incident.
     Similarly, Mr. Romero’s supervisor’s comment, “you better
watch that stuff, it will get you,” fails to impute knowledge on
the part of Northrop that Mr. Romero was substantially certain to
become   ill   from    performing      his    work   functions,    and   must   be
dismissed as workplace banter.                The affidavit of Mr. Romero’s
supervisor stated that he personally performed the same work under
the same conditions as was requested of Mr. Romero, and until the
time of Mr. Romero’s report of illness not a single employee had
reported   a   chemical     exposure    related      illness.      Although     the


                                        -8-
affidavit of one former Northrop employee stated that he had
personally   suffered   adverse   health   effects    from   unprotected
exposure to the chemicals used at the Lake Charles facility, and
had observed other employees experiencing adverse health effects,
the affiant failed to state that Northrop was ever informed of the
illnesses.   Again, this evidence fails to satisfy the substantial
certainty test.
     Finally, in their brief, the Romeros cite the holdings in
Clark v. Division Seven, Inc., 776 So.2d 1262 (La. Ct. App. 4th
Cir. 2000), writ denied, 787 So.2d 318 (La. 2001) and Wainwright v.
Moreno’s, Inc., 602 So.2d 734 (La. Ct. App. 3d Cir. 1992) as
support for finding that Northrop was substantially certain that
illness would result from Mr. Romero’s unprotected exposure to the
chemicals used at the Lake Charles facility.         In Clark, a worker
sustained injuries when he fell from a roof after being ordered by
his supervisor to return to work despite reports from the workers
that the roof was wet and slippery due to a recent rainfall.        See
Clark, 776 So.2d at 1264.         In Wainwright, a worker sustained
injuries when a ditch caved in on top of him after being ordered
back into the ditch by his supervisor despite warnings that the
soil was unstable, and a cave-in might occur.        See Wainwright, 602
So.2d at 737-39.   Although the Romeros attempt to draw a parallel
between these cases and his supervisor‘s order that he continue
working despite having been told by a Northrop safety monitor that
Mr. Romero was not properly certified to perform the specific task
due to his lack of respirator certification, Clark and Wainwright
actually cut against The Romeros.        In Clark, another worker had
actually slipped, and narrowly escaped falling off of the roof just
prior to the plaintiff’s fall.     See Clark, 776 So.2d at 1263.     In


                                   -9-
Wainwright, a cave-in had occurred on the day before the accident
in question.        See Wainwright, 602 So.2d at 739.      Both Clark and
Wainwright are distinguishable from the instant case in that the
events leading to the injuries had actually occurred before. Here,
however, the record is devoid of any evidence of a chemical
exposure related injury occurring at the Lake Charles facility
prior to Mr. Romero’s.
      After reviewing the record and Louisiana’s jurisprudence, we
conclude that the Romeros have failed to present factual support
to establish that they will be able to satisfy their evidentiary
burden at trial of proving that Northrop either intended to injure
Mr. Romero or knew that his injury was substantially certain to
occur.   Accordingly, there is no genuine issue of material fact,
and the district court properly granted Northrop’s motion for
summary judgment.
      The Romeros also maintain that in applying the substantial
certainty test elucidated in Bazley, the district court erred in
requiring them to show that Northrop knew that an injury would, in
fact, occur.    The Romeros assert that if such a standard is allowed
to   stand,   the    heightened   requirement   of   showing   the   actor’s
specific knowledge that an injury will, in fact, occur will result
in employees being required to show subjective intent on the part
of their employers in order to prosecute a claim for intentional
injury. The Romeros contend that such a standard raises the burden
of proof from “incapable of failing,” “nearly inevitable,” “almost
certain,” or “virtually sure” to specific knowledge on the part of
the employer and would, in effect, eliminate all claims under the
substantial certainty test.




                                     -10-
     This argument is based upon a sentence in the district court’s
opinion rephrasing the Reeves court’s discussion on a plaintiff’s
burden of proof under the substantial certainty test.1           It is not
necessary, however, for us to reach this issue as we have found,
after our de novo review, that the Romeros have failed to establish
that a genuine issue of material fact existed as to whether
Northrop knew that Mr. Romero was substantially certain to become
ill as a result of continued exposure to hazardous substances at
the Lake Charles facility.
                                CONCLUSION
     For the reasons stated above, the judgment of the district
court is affirmed.
     AFFIRMED.




1
The district court opinion reads in relevant part:

    A ”substantial certainty” takes the consequences out of the realm of
    possibility or risk.     Reeves at 212 (quoting Malone & Johnson,
    Louisiana Civil Law Treatise, Volume 14, Worker’s Compensation Law &
    Practice, § 365, p. 208). In other words, a substantial certainty
    requires a person to know an injury will occur.

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