UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 95-30034
Summary Calendar
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GEORGE ROGERS CLARK, JR.,
Plaintiff-Appellant,
LOUISIANA WORKERS' COMPENSATION
CORPORATION,
Intervenor,
versus
EXXON CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court for the
Middle District of Louisiana
(94 CV 124)
______________________________________________
(August 23, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Plaintiff-appellant George Rogers Clark, Jr. (Clark) appeals
the magistrate judge's denial of his motion for leave to file an
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
amended complaint. Agreeing with the magistrate judge that, given
the facts of this case, the proposed amendment to the complaint
would not state a cause of action under La. R.S. article 2315.3 and
that amendment would therefore be futile, we affirm.
Facts and Proceedings Below
Clark was an employee of C.M. Penn & Sons, which had been
hired by defendant-appellee Exxon Corporation (Exxon) in February
1993 to transport waste water by truck from Exxon's Chemical
Americas plant in Baton Rouge, Louisiana, to a water treatment
facility.1 On February 9, 1993, Clark was dispatched to pick up
waste water from the Baton Rouge plant. At the plant, an
unidentified Exxon employee directed Clark to run the hose from the
waste water tank into the tank of the transport truck through a
port on top of the truck.2 Clark followed these instructions,
running the hose into the port and placing the domed lid back on
top of the hose to hold it steady.
Once the pump was activated and began discharging waste water
into the truck, an Exxon employee directed Clark to climb onto the
truck and visually monitor the progress of the operation. Clark
climbed the ladder on the side of the truck's tank trailer and
lifted the domed lid on the port. When he did so, the hose flew
1
Although the waste water was usually transported to the
treatment facility by pipeline, in February 1993 the pipeline was
temporarily shut down for repairs.
2
Although the usual procedure for transferring the waste
water was to attach the hose to an in-take valve on the side of
the truck, this procedure was not followed for some unidentified
reason.
2
out of the port and began whipping around. Clark threw his hands
up and lost his grip on the ladder, falling nine and a half feet to
the ground and landing on his left heel. As a result of the fall,
Clark fractured his left femur and suffered injuries to his left
heel, foot, knee, and shoulder, as well as a ruptured cervical disk
and other physical injuries.
Clark and his wife filed suit against Exxon on January 28,
1994, in Louisiana state court. Exxon removed to the district
court below on the basis of diversity of citizenship on February 2
and answered the complaint. Both parties consented to have all
proceedings heard and decided by a magistrate judge. Exxon filed
a motion for summary judgment on August 26, 1994, arguing that
under Louisiana law it was Clark's "statutory employer."3 Clark
opposed the motion. On November 9, the magistrate judge granted
Exxon's motion for summary judgment, finding that Exxon was Clark's
statutory employer at the time of the accident and that therefore
Clark was limited to his workers' compensation remedies.
On October 20, 1994, before the magistrate judge ruled on the
summary judgment motion, Clark filed a motion for leave to amend
his complaint to add a claim for punitive damages under La. R.S.
article 2315.3. Clark pointed out that the Louisiana Supreme Court
3
Under the Louisiana workers' compensation laws, the
determination whether a principal is a statutory employer,
entitled to tort immunity as to the contractor's employees, is
guided by the so-called integral relation test, under which the
court "ask[s] whether the contract work being performed is
integral or essential to the principal's trade, business, or
occupation." Morgan v. Gaylord Container Corp., 30 F.3d 586, 589
(5th Cir. 1993).
3
had recently held that employees receiving workers' compensation
benefits were not barred from seeking damages from their employer
under article 2315.3. Billiot v. B.P. Oil Co., 645 So.2d 604,
modified on application for reh'g, 645 So.2d 620 (La. 1994). The
magistrate judge, however, denied the motion for leave to amend on
December 8, 1994, holding that the amendment would be futile
because the proposed amended complaint did not state a cause of
action under article 2315.3. Final judgment was entered against
Clark on January 19, 1995, and Clark filed a timely notice of
appeal.
Discussion
On appeal, Clark does not challenge the magistrate judge's
determination that Exxon was his statutory employer under Louisiana
law; he contests only the denial of his motion for leave to amend
the complaint to state a claim for exemplary damages under article
2315.3. Article 2315.3 provides for the award of exemplary damages
"if it is proved that plaintiff's injuries were caused by the
defendant's wanton or reckless disregard for public safety in the
storage, handling, or transportation of hazardous or toxic
substances." In Billiot, the Louisiana Supreme Court held that the
so-called remedy exclusion rule of the Louisiana Workers'
Compensation Act, under which the benefits provided for an employee
under the Act for work-related injury are exclusive of all other
rights and remedies against the employer, did not preclude a
plaintiff from seeking exemplary damages from his employer under
article 2315.3. Billiot, 645 So.2d at 608-16. Thus, even though
4
Clark, as Exxon's statutory employee, is precluded from seeking
compensatory tort damages against Exxon, under Billiot he could
recover exemplary damages if he can otherwise satisfy the
requirements of article 2315.3.
It is clear, however, that Clark's proposed amended complaint
does not state a cause of action under article 2315.3. The
decision to deny leave to amend is reviewed only for an abuse of
discretion. Davis v. United States, 961 F.2d 53, 57 (5th Cir.
1991). Although "leave shall be freely given when justice so
requires," Fed. R. Civ. P. 15(a), a grant of leave to amend after
answer has been filed is not automatic. Davis, 961 F.2d at 57. In
deciding whether to grant leave to amend, the trial court should
"consider[] a variety of factors, such as undue delay, bad faith,
undue prejudice to the opposing party by allowing the amendment,
and futility of the amendment." Id. Although Clark argues that
there has been no undue delay, bad faith, or prejudice to the
opposing party here, and Exxon concedes as much, we agree with the
magistrate judge that allowing the proposed amendment in this case
would be futile.
Several factors operate together to compel our decision. We
note first, as did the magistrate judge, that the proposed amended
complaint never expressly alleges that the waste water being pumped
into the truck was a "hazardous or toxic substance," as required by
article 2315.3. Except in paragraph 10, asserting liability under
article 2315.3, in which Clark makes a conclusory statement that he
is entitled to relief "due to defendant's wanton reckless disregard
5
for Mr. Clark's safety in the transportation, storage or handling
of hazardous or toxic substances," the complaint alleges only that
the water was a "chemical waste." We cannot agree with Clark that
the term chemical waste "denotes the probability that in fact the
waste was toxic and/or hazardous"; indeed, Exxon offered summary
judgment proof, in the form of an affidavit from the chairman of
the committee that investigated Clark's accident, averring that the
water pumped from the Baton Rouge plant, although containing
minimal amounts of some hydrocarbons, is neither toxic nor
hazardous.
Nor does the proposed amended complaint contain any clear
allegation that Exxon acted with the requisite willfulness under
the statute. Again, the assertion of "wanton reckless disregard"
in paragraph 10 does no more than mimic the language of the
statute, and paragraph 10 does not allege any particular act or
omission of Exxon. The only specific actions or inactions of Exxon
alleged in the proposed amended complaint are there characterized
in terms of negligence or strict liability. For an act of alleged
negligence to rise to the level of wanton or reckless conduct under
article 2315.3, a plaintiff must show that "the alleged acts and
omissions of negligence were accompanied by a conscious
indifference to consequences amounting almost to a willingness that
harm to the public safety would follow." Griffin v. Tenneco Oil
Co., 531 So.2d 498, 501 (La. App. 4th 1988). Such a state of mind
the proposed amended complaint does not expressly allege.
However, the really significant shortcoming of the proposed
6
amended complaint, and the one we think decisive, is the
complaint's failure to allege wanton or reckless disregard for
"public" safety. Paragraph 10, on which Clark relies to claim that
he has properly alleged the hazardousness and recklessness elements
of article 2315.3, specifically states that Exxon acted with
"wanton reckless disregard for Mr. Clark's safety in the
transportation, storage or handling of hazardous or toxic
substances." (Emphasis added). Article 2315.3, however, provides
for liability only when the defendant acts wantonly or recklessly
with regard to the public's safety. It is clear from the proposed
amended complaint that Clark is not seeking damages for an alleged
threat to the public safety but for the damages that he personally
sustained as a result of the accident.
Clark attempts to circumvent this deficiency in his pleadings
by arguing that he is "both a member of the public and
representative of the public that was injured." The former
assertion is simply unavailing for Clark; the clear language of the
statute requires that the defendant have shown "disregard for the
public safety," not merely disregard for any particular member of
the public's safety. The latter assertion is related to Clark's
claim that he was improperly denied further discovery to determine
whether the release of the waste water created a threat to the
public safety. This argument ignores that the proposed amended
complaint does not in any event properly allege a wanton or
reckless disregard of public safety. Moreover, Clark never made a
motion below requesting further discovery and therefore has waived
7
any right to complain of its denial on appeal. No facts alleged in
the proposed amended complaint suggest any danger to, much less
wanton or reckless disregard of, public safety, and the complaint
does not contain any even conclusory allegation to that effect.
Clark was an Exxon statutory employee working on Exxon plant
premises (not alleged to be open to the public), and there is no
allegation that anyone else (save possibly one Exxon employee) was
in the vicinity; danger to Clark is not equivalent to danger to the
public.
Given these circumstances, the magistrate judge did not abuse
his discretion in denying the motion for leave to amend. Exxon
also argues that Clark's complaint suffers from the further
deficiency of failing to show a nexus between the injury suffered
and the allegedly hazardous or toxic nature of the substance. In
Billiot, the Louisiana Supreme Court held that no such nexus was
required, Billiot, 645 So.2d at 616-18, but on application for
rehearing, the court withdrew that portion of its opinion as
unnecessary to the resolution of the case. Id. at 620. Because we
need not resolve this issue to decide this case, we express no
opinion regarding it.4
Conclusion
For these reasons, the judgment is AFFIRMED.
4
This issue has divided the Louisiana appellate courts.
Compare Broussard v. Rogers, 628 So.2d 1351, 1353 (La.App. 5th
1993) (nexus required), with Tillman v. C.S.X. Transportation Co.
617 So.2d 46, 48-49 (La.App. 4th 1993) (no nexus required).
8