Louisiana First Circuit Reaffirms Louisiana’s Heightened Standard to Overcome Statutory Employer Immunity
Authors: Jonathan S. Forester and Jace M. Weber
In Saizon v. Dow Chemical Co., the Louisiana First Circuit reaffirmed the exceptionally high burden plaintiffs face when attempting to circumvent workers’ compensation immunity through the intentional act exception—particularly in the context of a statutory employer relationship.
Generally, the Louisiana Workers’ Compensation Act provides the exclusive remedy to employees injured in the course and scope of their employment, limiting recovery to workers’ compensation benefits against their employer and barring tort claims against that employer. This immunity extends not only to a direct employer but also to entities deemed the employee’s “statutory employer.” Where a written contract expressly recognizes a statutory employer relationship, a rebuttable presumption arises under La. Rev. Stat. § 23:1061(A)(3). As the court reaffirmed in Saizon, this presumption may be rebutted only upon a showing that the work performed was not “integral part of” or “essential” to the principal’s trade, business, or occupation.
In Saizon, Mr. Saizon was performing maintenance work at Dow Chemical’s industrial facility in Plaquemine, Louisiana, as a direct employee of Turner Industrial Group, L.L.C. (“Turner”). During this work, a fire occurred in one of Dow’s units, causing Mr. Saizon to sustain significant injuries. Mr. Saizon filed suit against Dow and three of its employees. Dow and its employees moved for summary judgment, asserting that Dow was Mr. Saizon’s statutory employer and that his recovery was limited to workers’ compensation benefits. The trial court granted the motion, and Mr. Saizon appealed, arguing that the intentional act exception precluded summary judgment.
On appeal, the First Circuit first affirmed that Dow was the statutory employer of Mr. Saizon. The contract between Dow and Turner expressly recognized Dow as the statutory employer of Turner’s employees working at the facility, creating a rebuttable presumption in which Mr. Saizon failed to present evidence sufficient to rebut. The Court further found that the record demonstrated that the type of work being performed by Turner and its employee, Mr. Saizon, at the time of the incident—maintenance work to the facility—was integral to Dow’s ability to generate its goods and services.
Since the Defendants established a statutory relationship existed, Mr. Saizon had to present sufficient evidence (to create a genuine issue of fact) that defendants’ conduct satisfied Louisiana’s narrow intentional act exception, to overcome the tort immunity afforded to Dow and its employees. In discussing this issue, the First Circuit observed that under Louisiana law, the intentional act exception exists only where proven that the defendant either (1) consciously desired the injury, or (2) knew the injury was substantially certain to follow. The case focused on the latter—whether Dow and its employees knew that injury was “substantially certain to follow” from their conduct.
The First Circuit held that “substantially certain to follow” requires more than a reasonable probability of harm; rather, the injury must be inevitable, and the event must be incapable of failing—a standard that imposes an exceptionally high burden on plaintiffs seeking to overcome statutory employer immunity. The court further observed that “[a] distinguishing feature” in applying this test is whether (a) the event has occurred before or (b) the injury has manifested itself under similar circumstances.
Consistent with longstanding jurisprudence, the First Circuit emphasized that Louisiana courts have narrowly construed the intentional act exception. Violations of safety rules—even serious or repeated violations—do not rise to the level of intent, citing, Reeves, 731 So. 2d at 211–12.
Applying these principles, the court held even construing the facts in a light most favorable to Mr. Saizon; and that although Dow and its employees failed to fully comply with certain safety procedures in clearing hydrocarbons from the line, those failures did not meet the “substantial certainty standard.” The Dow employees performed testing, which indicated no hydrocarbons were present, and believed the line was safe. As the court explained, such conduct—while potentially negligent or even reckless—does not constitute an intentional tort. The First Circuit further reiterated that even conduct exceeding aggravated negligence—such as knowingly permitting hazardous workplace conditions or failing to provide a safe workplace—falls short of the intent required to impose tort liability.
Because there was no evidence that defendants intended harm or were substantially certain that injury would inevitably occur, the court affirmed summary judgment in favor of Dow and its employees.
Key Takeaways
This decision reinforces that statutory employer immunity remains a highly effective defense for Louisiana industrial facilities, private owners, and contractors—particularly where it is supported by clear contractual language expressly establishing the statutory employer relationship. For contractors and participants in construction and industrial projects, the case underscores the critical importance of ensuring that contracts with subcontractors and service providers include properly drafted statutory employer provisions to secure the protections afforded under La. R.S. 23:1061. The decision further highlights that the intentional act exception is extraordinarily narrow: safety violations—even serious, repeated, or reckless conduct—are insufficient to establish intent. Louisiana courts continue to require proof that injury was inevitable and incapable of failing, not merely foreseeable or probable. Absent such evidence, claims will remain barred by the exclusivity provisions of the Louisiana Workers’ Compensation Act.
