* 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should not be published. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 95-30034

Summary Calendar

__________________

GEORGE ROGERS CLARK, JR.,

Plaintiff-Appellant,

LOUISIANA WORKERS' COMPENSATION

CORPORATION,

Intervenor,

versus

EXXON CORPORATION,

Defendant-Appellee.

______________________________________________

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 ju dge's denial of his motion for leave to file an1 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 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 h ad been

hired by defendant-appellee Exxon Corporation (Exxon) in February

1993 to trans port 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 plan t. 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 do med 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 tr ailer and

lifted th e domed lid on the port. When he did so, the hose flew3 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 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 "statu tory 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 puni tive damages under La. R.S.

article 2315.3. Clark pointed out that the Louisiana Supreme Court4

had recently held that employees receiving workers' compe nsation

benefits were not barred from seeking damages from their employer

under article 2315.3. B ill iot 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 B illiot

, the Louisiana Supreme Court held that the

so-called r emedy 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 pre clude a

plaintiff from seeking ex emplary damages from his employer under

article 2315.3. Billiot , 645 So.2d at 608-16. Thus, even though5

Cla rk, as Exxon's statutory employee, is precluded from seeking

compensatory tort damages against Exxon, under B illiot 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 sta te a cause of action under article 2315.3. The

decision to deny leave to amend is reviewed only for an abuse of

discretion. D avis v. United St ates , 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. D avis

, 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 prejudi ce to the opposing party by allowing the amendment,

and futility of the amendment." I d. 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 disregard6

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 f rom 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 complai nt contain any clear

alleg ation 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 l anguage 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 co nscious

indifference to consequences amounting almost to a willingness that

harm to the publi c safety would follow." G riffin 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.

Howeve r, the really significant shortcoming of the proposed7

amended complaint, and the one we think decisive, is the

complaint's failure to allege wanton or reckless di sregard for

"public" safety. Paragraph 10, on which Clark relies to claim that

he has properly alleged the hazardousness and recklessness elements

of article 23 15.3, specifically states that Exxon acted with

"wanton reckl ess disregard for M r. 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

wheth er 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 waived4 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 any right to complain of its denial on appeal. No facts alleged in

the proposed amended complaint suggest a ny 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 publi c), 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

h is 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, th e court withdrew that portion of its opinion as

unnecessary to the resolution of the case. I d. at 620. Because we

need not resolv e this issue to decide this case, we express no

opinion regarding it. 4

Conclusion

For these reasons, the judgment is AFFIRMED.