When the Safety Guard Was Removed: The Intentional Act Exception After a Louisiana Machine Amputation

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 for a Machine Amputation in Louisiana?

If a machine took your hand or your arm and you were told workers’ compensation is all you can get, that is usually right, but not always. If your employer knew the machine was dangerous, took a guard off of it, or had already watched it hurt other workers, workers’ compensation may not be the end of the analysis. Louisiana lets an injured worker sue past compensation in a narrow set of cases. The case below is one a federal court allowed to go to a jury. Here is what happened, and what made the difference.

What Happened at the Diamond Plastics Plant

Clarence Mitchell came to Diamond Plastics through a temporary staffing agency with no experience in the pipe business. Diamond makes PVC pipe, and its plant in Plaquemine, Louisiana ran belling machines, heavy equipment that cuts and fits gaskets into the pipe. One week in, Diamond put Mitchell on one of those machines. His training was watching a supervisor do it once and being told, you do it.

The machine was missing its safety guard. The manufacturer had built it with a rubber flap that rides down with the clamp and covers the opening, so a hand cannot reach into the chamber while the machine cycles. Diamond had taken that guard off of every belling machine at every one of its plants. Mitchell’s own supervisor told him the machine was dangerous, that it would grab his arm if he was not careful, and that they needed to put a guard on it. Then he was left to run it alone. He was never trained on what to do if a gasket got stuck, and he was not even allowed to shut the machine down and lock it out. Only a supervisor could do that.

Eight weeks in, a gasket fell into the chamber. Mitchell reached through the open, unguarded gap to get it. The clamp came down on his wrist and took his right hand. The next day, Diamond put new guards back on all of its machines.

Does Workers’ Compensation Bar a Claim for a Machine Injury?

Diamond’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 the employer was. La. R.S. 23:1032. Mitchell agreed that his ordinary negligence claims were barred and gave them up.

What he kept was the one claim the bar does not block, 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 it are laid out in our discussion of the intentional act exception. This case is one application of it.

Can You Sue an Employer That Removed a Machine Safety Guard?

We did not argue that Diamond wanted Mitchell to lose his hand. Louisiana law does not require that. The question was whether Diamond knew that taking the guards off, and sending workers to reach into the machine, made an injury like his substantially certain. Louisiana courts have said yes to that kind of claim when the danger was known and the same thing had happened before. A worker sent back onto a roof right after a coworker slipped. A worker put in a ditch that had caved in the day before. The common thread is not carelessness. It is a known injury producing mechanism that the employer chose to leave in place. Clark v. Division Seven, Inc., 776 So. 2d 1262 (La. App. 4 Cir. 2000); Wainwright v. Moreno’s Inc., 602 So. 2d 734 (La. App. 3 Cir. 1992).

It is worth being candid about what this exception is not. Knowing a machine is dangerous, standing alone, does not make an injury an intentional act, and neither does a bad safety record by itself. The Louisiana Supreme Court has thrown out claims where the same job had been done safely for years. Batiste, 45 So. 3d at 169. What carries a case is the employer’s knowledge joined to its choice to send the worker in anyway. Mitchell had both.

What Evidence Showed the Employer Knew?

Diamond’s whole defense rested on one claim: that no operator had ever reached into one of these machines and been hurt before Mitchell. The case was built by proving that false out of Diamond’s own records.

Diamond’s accident reports showed that in the five years before Mitchell lost his hand, twenty of its workers had belling machine accidents, two of them at the Plaquemine plant. Our safety expert, Dr. Jahan Rasty, went through those reports and found five that matched Mitchell’s almost exactly, workers reaching into the same spot on the same model of machine with the guard removed. Four lost or mangled fingers or hands. The fifth was caught by the torso and killed. Dr. Rasty’s conclusion was blunt. None of those injuries, and not Mitchell’s, would have happened if the guards had been left on.

The rest of the proof came out of Diamond’s own mouth. Its corporate representative admitted the right way to clear a stuck gasket was to shut the machine off and lock it out, then admitted that operators like Mitchell were neither trained nor allowed to do that. So the only safe response to a stuck gasket was one Mitchell was forbidden to perform. OSHA documented the missing guard and even watched Diamond putting guards back on the machines during its inspection. Asked why, Diamond’s representative said the company felt it needed to address something. Diamond’s own safety expert never mentioned the prior accidents at all.

Even the way Diamond defended the case helped prove it. Its court papers ignored every prior accident, and when it finally admitted them, it conceded that at least two had involved a worker reaching a hand through the very opening where the missing guard belonged. The judge noticed, and rebuked Diamond’s lawyers for telling the court there had been no prior injuries, calling that at best inaccurate. When a defense has to misstate its own record, it is telling you where the case is strongest.

Does It Matter That You Were a Temporary or Staffing-Agency Worker?

It does not close the door. Mitchell came through a staffing agency and had been there only eight weeks, and his case still went to a jury. A temporary or borrowed worker generally counts as the employer’s employee, which means the same workers’ compensation bar applies, and the same intentional act exception is available to get around it. What mattered was the machine and its history, not how you were hired or how long you had been there.

What the Court Ruled

The court refused to throw the case out and sent the intentional tort claim to a jury. Mitchell v. Diamond Plastics Corp., No. 18-00919-BAJ-RLB, 2022 WL 243712 (M.D. La. Jan. 25, 2022). It held the evidence went well past what was needed to let a jury find that Diamond knew Mitchell’s injury was substantially certain once it removed the guards, and it called the answer obviously yes.

One distinction is worth being precise about. The court did not rule that Diamond committed an intentional tort. It ruled that a jury could reasonably find it did, on this record, and that is what clears away the workers’ compensation bar and puts the case in front of a jury. For a worker who is told this exception is almost impossible to meet, a federal court holding that this kind of proof clears it is worth a great deal.

What This Means If the Same Thing Happened to You

If a machine hurt you at work, 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 a guard was missing, disabled, or removed, when the same machine had hurt other workers, or when the company changed something right after your injury that would have prevented it. The exception does not turn on how careless the employer was. It turns on what it knew and chose to leave in place.

Evidence in these cases disappears or gets fixed, so move early. The things that decide them are the machine itself as it sits after the accident, the company’s own accident reports for the same equipment, any OSHA file, maintenance records showing when a guard came off or went back on, and whatever training you did or did not get. A guard quietly put back on after the fact is powerful proof, and it is also the first thing that changes. Ask for these records in writing, and 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.

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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 . .