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When You Can Sue Your Employer in Louisiana: The Intentional Act Exception to Workers’ Compensation
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.
Does Workers’ Compensation Prevent You From Suing Your Employer in Louisiana?
If you were badly hurt at work, you were probably told the same thing everyone is told. Workers’ compensation is all you get, and you cannot sue your employer. Most of the time that is true. Louisiana makes workers’ compensation the exclusive remedy for a workplace injury, so you generally cannot sue your employer in court no matter how careless it was. The deal is deliberate. You get benefits without having to prove fault, and the employer is protected from a larger lawsuit.
There is one exception, and it is narrow. Louisiana lets you step outside workers’ compensation and sue your employer when your injury was not really an accident, but the substantially certain result of something the employer knew and did anyway. La. R.S. 23:1032. Most injuries do not qualify. The ones that do share a specific pattern. This page explains that pattern in plain terms, then sets out the law behind it for the lawyer who wants the authority. If you are the injured worker, or the lawyer deciding whether the case is worth taking, both of you are in the right place.
Who Does the Workers’ Compensation Bar Cover?
The bar covers more workers than people expect, so do not assume it does not reach you. It applies to regular employees. It applies to temporary and staffing agency workers, who count as the employee of the company that runs their work. And through the statutory employer rule it can even reach a contractor’s workers. The label on your paycheck does not decide whether you can use the exception. What decides it is what your employer knew and did.
What Counts as an Intentional Act Under Louisiana Law?
An employer can commit an intentional act in two ways. The first is when it actually wanted to hurt the worker. That almost never happens in a plant or on a job site, because employers do not set out to maim their people. The second is the one that matters in real cases. The law treats an employer as having intended the injury when it knew the injury was substantially certain to follow from what it told the worker to do, whether or not it wanted that result. That rule comes from Bazley v. Tortorich, 397 So. 2d 475 (La. 1981), and Louisiana courts have applied it ever since. Miller v. Sattler Supply Co., 132 So. 3d 386 (La. 2014).
What Does “Substantially Certain” Mean?
This is the high bar, and it is where most of these cases are won or lost. Substantially certain means more than likely, and more than dangerous. The courts have defined certain to mean inevitable, or incapable of failing. Batiste v. Bayou Steel Corp., 45 So. 3d 167 (La. 2010). Believing that someone will probably get hurt eventually is not enough. That is negligence, and workers’ compensation covers it. Reeves v. Structural Preservation Systems, 731 So. 2d 208 (La. 1999). Knowing a machine is dangerous is not enough by itself either. The question is not how bad the employer’s judgment was. It is whether, given what the employer knew, your injury was close to unavoidable.
What Usually Is Not Enough?
Because the bar is high, most claims fail, and they fail in predictable ways. If the same job has been done the same way many times without anyone getting hurt, that history works against you, because a safe track record is the opposite of inevitable. If the employer tried to fix or guard the hazard, even badly, that effort usually defeats the claim, because it shows the employer did not believe injury was certain. If you could have avoided the injury by following instructions you were given, that breaks the chain. And if the employer did not actually know about the specific danger that hurt you, the claim fails no matter how serious your injury is. The cases behind those lines are Reeves and Batiste, Castro v. Fred’s Painting, Inc., 692 So. 2d 408 (La. 1997), Stanley v. Airgas-Southwest, Inc., 171 So. 3d 915 (La. 2015), Carrier v. Grey Wolf Drilling Co., 776 So. 2d 439 (La. 2001), and Zamora v. Equilon, 415 So. 3d 365 (La. App. 5 Cir. 2025).
There is one trap worth calling out. Even proof that the employer knew about earlier similar accidents is not, by itself, enough. Batiste, 45 So. 3d at 169 n.2. A bad safety history matters in almost every winning case, but it has to be paired with the employer’s decision to send the worker into the known danger without fixing it. Knowledge alone does not win. Knowledge plus the decision to proceed is what wins.
When Can an Employer’s Conduct Become an Intentional Act?
The cases that succeed look alike. The danger was already known, or the same thing had happened before, and the employer sent the worker into it anyway without fixing it. Three patterns come up again and again.
The first is a known dangerous condition the employer orders a worker into. A roofer sent back onto a roof right after a coworker slipped. A worker put into a ditch that had caved in the day before. In both, no one had actually been hurt yet, and the claim still survived, because the danger was obvious and the order to proceed was given anyway. 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).
The second is repeated chemical or toxic exposure. When an employer knows workers are being exposed to something harmful and keeps sending them back into it, the claim can go forward, especially where the exposure had already made people sick. Abney v. Exxon Corp., 755 So. 2d 283 (La. App. 1 Cir. 1999); Trahan v. Trans-Louisiana Gas Co., 618 So. 2d 30 (La. App. 3 Cir. 1993); Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002).
The third is a known equipment defect the employer leaves in service, or a safety device it strips off or defeats. When management keeps running equipment it knows is broken and understands how it will hurt someone, the fact that this exact injury had not happened before does not save the employer. Higgins v. Williams Energy Partners, L.P., 280 So. 3d 195 (La. App. 1 Cir. 2019). A federal court in Baton Rouge applied that rule when an employer removed the safety guards from a machine that had already injured and even killed other workers. Mitchell v. Diamond Plastics Corp., 2022 WL 243712 (M.D. La. Jan. 25, 2022).
How Do You Prove the Employer Knew Someone Would Get Hurt?
These cases are proven out of the employer’s own files, not the worker’s word. The strongest evidence is the company admitting, in its corporate deposition or in written discovery, that it knew the condition was dangerous. Close behind are the company’s own incident investigation and root cause report, because they are its own explanation of why you were hurt. OSHA or MSHA citations show the hazard was recognized and often that the company failed to fix it, although those findings prove knowledge, not intent by themselves. Records of earlier injuries on the same equipment supply the history the law requires. And a fix made the day after the injury, a guard put back on or a valve finally replaced, is some of the most powerful proof there is, because it shows the danger was known and fixable the whole time. Good engineering and safety experts then tie it together and explain why the harm was inevitable once the work was assigned.
How Are These Cases Actually Litigated?
Almost every one of these cases is decided on a motion for summary judgment, and that motion is the whole ballgame. The employer argues the case is ordinary negligence dressed up as intent and asks the judge to throw it out. The worker has to point to specific evidence that the employer knew and proceeded anyway. Because intent turns on inference, a judge should not dismiss the case where the record lets a jury reasonably find the employer knew. Winning that motion does not mean you have won the case. It means the compensation bar is gone and a jury gets to decide.
Two Louisiana Examples
Our firm has litigated this exception on both of its main routes. In one, an alumina refinery ordered an operator to open the bottom of a tank the company admitted could not be kept empty, because of a valve it knew was leaking and had ordered fixed but never repaired, and the operator was gravely burned by caustic liquor. That case turned on the known defect, the company’s own admissions, and regulatory findings, and it is described in our caustic burn case study. In the other, a plant removed the manufacturer’s safety guards from a machine that had already hurt other workers, and a temporary worker lost his hand reaching into the unguarded opening. That case turned on the removed guard and a documented history of the same injury, a federal court held the evidence was enough to reach a jury, and it is described in our removed guard case study. Same standard, two different kinds of proof.
What to Do If You Think This Applies to You
For an injured worker, the question is not how careless your employer was. It is whether it knew about the specific danger, a broken machine, a removed guard, a defective valve, a hazard that had hurt someone before, and sent you into it anyway. If that describes what happened to you, the idea that workers’ compensation is your only remedy deserves a second look. Preserve everything. The machine or equipment as it sits after the accident, the employer’s own incident reports, any OSHA or MSHA file, maintenance and repair records, and the records of earlier injuries are what decide these cases, and some of them change the day after an accident.
For referring counsel, the screen is quick. Look for documented prior incidents on the same equipment or operation, a known and uncorrected defect or a defeated safety device, admissions or internal findings acknowledging the hazard, and a post incident fix. A file with those features is worth a hard look. A file resting only on the severity of the injury or the obviousness of a general risk usually is not.
One caution applies to every case. The time limit 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 there is any chance the exception applies, get the deadline confirmed right away, because once it passes the claim is gone no matter how strong it was.
The Honest Limits
This exception is not a general way around workers’ compensation, and we will not sell it as one. Most workplace injuries, including many caused by real employer carelessness, stay inside the compensation system, and Louisiana courts enforce that line. The cases that break through are the ones where the employer’s own knowledge and its decision to proceed make the harm closer to inevitable than to unfortunate. Those cases are uncommon. But when the facts are there, the difference for you is the difference between capped compensation benefits and full recovery for an injury that changed your life. Knowing which side of that line a case falls on is the whole job, and it is worth getting right early.
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 .
