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When the Isolation Valve Was Left to Leak: The Intentional Act Exception After a Louisiana Caustic Burn
By Kenneth H. Hooks, III. He has practiced law in Louisiana since 1997, is AV rated by Martindale-Hubbell, and has been appointed by both state and federal courts to oversee complex litigation.
Can You Sue Your Employer After a Chemical Burn at a Louisiana Plant?
If you were burned by chemicals at a plant or refinery and were told workers’ compensation is your only option, that is often true, but not always. If the company knew the equipment was broken, knew the hazard had burned workers before, and sent you in anyway, you may be able to sue past workers’ compensation. Louisiana allows it in a narrow set of cases. The one below is such a case. Here is what happened, and how it was proven.
What Happened at the Gramercy Refinery
Burnell Joseph was thirty six and worked as a tank operator at ATALCO’s alumina refinery in Gramercy, Louisiana. On June 9, 2022, he was told to put Precipitation Tank 41 back in service and change the nozzle at the bottom of it. The tank holds caustic liquor, a sodium hydroxide solution that ran that day between 172 and 184 degrees. A valve at the top is supposed to seal the tank off from the caustic feeding into it. When that valve holds, the tank stays empty and the work underneath is safe. When it leaks, caustic runs into the tank.
Tank 41’s valve was leaking, and ATALCO knew it. Its own operators had written it up as the worst valve in the unit. The company had already ordered the valve blinded or replaced on an emergency basis, and had done neither. Joseph and a new coworker went up top, looked in, saw the tank was empty, tagged it, and came back down to pull the nozzle. In the ten or twelve minutes that took, caustic leaked past that valve and pooled in the bottom of the tank. When Joseph loosened the nozzle, superheated caustic blew out into his face and eyes and across his back and chest, hard enough to knock him off the ladder.
He ran for the nearest emergency shower. It was broken. A coworker found him blind and stumbling and got him to a working one, where they held him under the water for half an hour while he screamed for help. He was airlifted to a burn unit in New Orleans. The caustic destroyed the surface of both eyes. Over the next three years he had six major surgeries with a seventh still ahead of him, including skin grafts, a corneal transplant, and a stem cell transplant using tissue his mother gave from her own eye. He is permanently visually impaired.
Does Workers’ Compensation Bar a Chemical Burn Claim?
ATALCO’s first move was to say the claim was barred. In Louisiana, workers’ compensation is normally the only remedy for a workplace injury, and it blocks a lawsuit against the employer no matter how careless it was. La. R.S. 23:1032. The exception is the intentional act. An employer is on the hook when it knew the injury was substantially certain to follow from what it did, a standard the Louisiana Supreme Court has defined to mean inevitable, not merely likely. Batiste v. Bayou Steel Corp., 45 So. 3d 167 (La. 2010). The full standard, and the cases on both sides of the line, are laid out in our discussion of the intentional act exception. This case is one application of it.
Can You Sue if the Employer Knew the Equipment Was Defective?
We did not argue that ATALCO wanted Joseph to be burned. Louisiana law does not require that. The issue was whether the company knew his injury was substantially certain to happen if it sent him under that tank. Louisiana courts have allowed that kind of claim when the employer knew about a specific danger, a defective piece of equipment or a chemical that had hurt people before, and required the work anyway. This case had both. The chemical was caustic liquor that had burned workers before. The defect was a valve the company admitted could not keep the tank empty and had ordered fixed but left in service. Once Joseph was sent under that tank with the valve still leaking, getting hit with caustic was not a risk. It was going to happen.
What Evidence Showed the Employer Knew?
These cases are won on what the employer knew, and the best proof is the employer’s own words. Here the record was built on admissions. ATALCO admitted the valve on Tank 41 was leaking. It admitted a tank cannot stay empty with a leaking valve. It admitted it had written emergency orders to blind or replace that valve and had done neither before sending Joseph under the tank. Its own investigation named the cause as the leaking valve that was found but not repaired. When the company’s own representative concedes all of that, substantial certainty is no longer the plaintiff’s argument. It is the company’s own account.
The corporate deposition also handed us the safety rules, in the company’s own voice. ATALCO’s representative agreed that a caustic plant has to put safety over production, that known hazards must be eliminated or controlled, that workers should never be exposed to uncontrolled chemical risks, that running known faulty equipment endangers the safety and life of workers, and that the company had the power to prevent exposure to known risks. Then each of those rules was laid against Tank 41. The valve was known to be bad, the tank could not be kept empty, the fix was written and never done, and a man was sent under the tank anyway. A case is strongest when the standard and the violation both come from the defendant.
The danger was not abstract, and it was not new. ATALCO’s own records showed a long history of caustic burns in this unit. One operator was sprayed at a nozzle when caustic came out of the bottom of a tank. A contractor was hit doing bottom of tank work when caustic came in through a leaking valve, almost exactly what happened to Joseph. Operators testified that getting burned was just part of the job. Even the company’s own former safety managers testified, after the fact, that a tank with a leaking valve is not properly isolated, that they would not have allowed the work, and that they had not known operations was sending people under tanks in that condition. That is telling. The people in charge of safety would have stopped the job, and the decision to go ahead was made without them.
The regulators closed the loop. MSHA investigated and issued two orders, one for running Tank 41 with the leaking valve and one for failing to provide required protective gear, and found that management’s conduct was more than ordinary negligence. ATALCO did not fight the orders and paid the penalties. Those orders do not prove an intentional tort, and we did not offer them as if they did. They go to what the company knew, which is what the case turns on.
Building the case also meant taking apart the defense. ATALCO hired an engineer to say the caustic came not from the leaking valve but from a different valve, a theory that would have turned a known defect into an unforeseeable fluke. He admitted he never read ATALCO’s own investigation notes, which had already ruled that other valve out, and he admitted that without knowing the leak rate he could not run his own calculation. ATALCO’s safety expert blamed Joseph, but his opinions came down to calling Joseph a liar, used no real method, and reached the legal conclusions of intent and inevitability that are the jury’s to decide, not an expert’s. Both were challenged under the rules that govern expert testimony. Our own experts, by contrast, tied the admitted facts together and explained why, once that nozzle was loosened, gravity made the caustic coming down unavoidable.
How the Case Resolved
The case resolved by confidential settlement in the United States District Court for the Middle District of Louisiana. ATALCO had asked the court to throw the case out on the compensation bar and to exclude our experts. We opposed both and moved to exclude theirs. The case settled while those motions were pending, before the court ruled on any of them. There is no court holding that ATALCO committed an intentional tort, and we do not claim one. What the record shows is that a claim the employer insisted was barred as a matter of law was still standing on the eve of decision, and then resolved.
What This Means If the Same Thing Happened to You
If you were seriously hurt in a Louisiana plant, the first thing you will hear is that workers’ compensation is all you get. Sometimes that is right. It is worth a second look when your injury came from a condition the company already knew about, equipment it knew was broken, or a hazard that had hurt someone before. The exception does not turn on how careless the company was. It turns on what it knew and did anyway.
Evidence in these cases disappears, so move early. The things that decide them are the company’s own incident investigation and root cause report, any regulatory citations, work orders showing the company knew a repair was needed, maintenance and inspection logs, and the records of earlier injuries in the same operation. Ask for them in writing and preserve everything you have. Do not give a recorded statement or sign anything about how the injury happened before you understand your rights.
Watch the calendar. The deadline to sue your employer is strict, it runs separately from your compensation claim, and Louisiana has recently changed the prescriptive period for personal injury actions. Do not assume how long you have. If your injury might fit what is described here, get the deadline confirmed right away, because once it passes the claim is gone. If you want that answer, call our office and we will tell you straight whether the facts support it.
About the author. Kenneth H. Hooks, III is the managing partner of Dodson & Hooks, LLC in Baton Rouge, Louisiana, where he has practiced since 1997. His work centers on catastrophic personal injury, products liability, and wrongful death in Louisiana state and federal courts. He is AV rated by Martindale-Hubbell, has been named to Louisiana Super Lawyers every year since 2011, and practices at a firm recognized in the U.S. News Best Law Firms rankings. State and federal courts have appointed him to oversee complex litigation, including as a Special Master over more than one hundred insurance and hurricane cases in the Nineteenth Judicial District and as an appointed neutral for the United States District Court for the Middle District of Louisiana. He has briefed cases to the Louisiana, Texas, and United States Supreme Courts, and taught at Southern University Law Center from 2007 to 2021 and at international institutions in Turkey and Greece.
If you were seriously injured and were told workers’ compensation is your only remedy, or if you are a lawyer weighing a referral or co-counsel arrangement on a catastrophic injury file, contact Kenny at 225-235-3380 or Kenny@dodsonhooks.com . . .
