Jurisdiction: United States District Court for the Eastern District of Louisiana

Decedent Michael Dandry Jr. was employed in various positions by defendant, Avondale, between June 1971 and August 1971. During that time, plaintiffs claim decedent was exposed to asbestos and asbestos-containing products on Avondale’s premises, which ultimately led to decedent developing mesothelioma.

Plaintiffs contend Avondale had “care, custody, and control of the asbestos, which was defective and which presented an unreasonable risk of harm, which resulted in the injury of Decedent.” Thus, plaintiffs argued that Avondale is strictly liable under Louisiana law.

To prove that a defendant committed an intentional tort under Louisiana law, a plaintiff must show that a defendant either “‘(1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself.’” Accordingly, to be successful, plaintiffs must prove that the defendant either consciously desired that decedent would contract mesothelioma or knew that result was “substantially certain to follow from defendants’ conduct.”

Defendant Avondale argued that summary judgment is appropriate on the issue of intent because it did not: (1) consciously desire for decedent to contract mesothelioma; or (2) know with substantial certainty that decedent would contract mesothelioma because of Avondale’s conduct. Avondale maintained that knowledge of the danger of asbestos is not sufficient to prove an intentional tort. Since plaintiffs provide no evidence of either prong here, there is no evidence of fraudulent intent to sustain a fraud claim against Avondale. Avondale also argued that knowledge of the dangers of asbestos does not establish an intent for decedent to contract mesothelioma.

In opposition to Avondale’s motion, plaintiffs argued that Avondale and its executive officers knew of the hazards of asbestos and were substantially certain that disease would occur.

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Generally, summary judgment is disfavored when issues of intent or state of mind are involved because those determinations are inherently a question of fact which turns on credibility. However, a court is not precluded from granting summary judgment where elusive concepts such as motive or intent are at issue.

Plaintiffs only argued that Avondale knew of the hazards of asbestos and were substantially certain that disease would occur. To be successful on an intentional tort claim, plaintiffs must prove that decedent contracting mesothelioma was “inevitable or incapable of failing.” “[M]ere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct.”

The court determined that the evidence plaintiffs presented in this case fell below the bar of what is needed to raise a material issue for an intentional tort claim. The court found that the evidence only suggested that Avondale knew of the hazards of asbestos at the time of decedent’s exposure in 1971. However, plaintiffs did not submit any evidence suggesting that Avondale consciously intended to harm decedent or that his mesothelioma was “inevitable or incapable of failing.”

The court further stated that given the evidence here, “Plaintiff’s claim against Avondale lies in the realm of negligence…not intentional tort.” For the same reasons, the court also held Avondale is entitled to summary judgment on plaintiffs’ fraud and concealment claims.

Thus, the court granted Avondale’s motion for partial summary judgment on plaintiffs’ intentional tort claims.

Read the full decision here.