United States Court of Appeals

for the Fifth Circuit

No. 22-30413

Summary Calendar

Herman Populars, Jr., 

Plaintiff—Appellant,

versus

Trimac Transportation, Incorporated, 

Defendant—Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-cv-316

Before Clement, Graves, and Wilson, Circuit Judges.

Per Curiam:*

Herman Populars, Jr., appeals the district court’s grant of summary 

judgment to Trimac Transportation, Inc. We AFFIRM.

I

The parties here tell the same, undisputed tale. Trimac runs a tanker 

cleaning facility in Geismer, Louisiana. Populars, employed there as a “wash 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

January 3, 2023

Lyle W. Cayce

Clerk

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2

rack technician,” was tasked with washing tankers brought into the facility. 

To do so, he would start by draining the heel—the tanker’s few remaining 

gallons—into a five-gallon bucket. He would then empty that bucket into 55-

gallon steel drums. This was usually uneventful. 

On March 16, 2018, however, it was not. Populars first drained a 

tanker correctly labeled as containing methylene diphenyl diisocyanate 

(MDI). He then did the same for a second tanker, one also marked—both in 

Trimac’s computer safety system and on a placard on the tanker itself—as 

containing MDI.1 But when Populars drained the supposed-MDI into the 

same steel drum as before, the chemicals exploded, injuring him. It turns out 

that the second tanker contained not MDI, but monoethanolamine (MEA).

The two—MDI and MEA—are highly reactive. 

Populars sued Trimac, alleging that the company intentionally 

harmed him. The district court eventually awarded Trimac summary 

judgment, finding that Populars failed to show that Trimac intended his 

harm. Populars now appeals.

II

We review a district court’s grant of summary judgment de novo and 

view the record in the light most favorable to the non-movant. In re La. 

Crawfish Producers, 852 F.3d 456, 462 (5th Cir. 2017). Summary judgment is 

appropriate where “the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” 

Id. (quoting Fed. R. Civ. P. 56(a)). 

Since Trimac employs Populars, he would ordinarily be entitled only 

to worker’s compensation benefits as remedy for a workplace injury. See La. 

1 The placard was placed not by Trimac, but by the “generator of the fluid.” 

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Rev. Stat. § 23:1032(A)(1)(a). However, if Populars’s injury resulted 

from “an intentional act,” Populars is permitted to sue in tort. See id. 

§ 23:1032(B). To be an intentional act, the actor must either consciously 

desire the physical result of his act, or must know that the result is 

substantially certain to follow from his conduct, his desire notwithstanding. 

See Cole v. State Dep’t of Pub. Safety & Corr., 825 So. 2d 1134, 1140 (La. 2002).

Everyone here agrees that Trimac did not consciously desire to hurt 

Populars. Instead, Populars must show that Trimac knew his injury was 

substantially certain to result from its actions. Substantial certainty, in this 

context, “requires more than a reasonable probability that an injury will 

occur,” but rather that such injury was “inevitable or incapable of failing.” 

Stanley v. Airgas-Southwest, Inc., 171 So. 3d 915, 916 (La. 2015) (per curiam) 

(citations and quotations omitted). As Louisiana courts have made clear, 

“mere knowledge and appreciation of a risk does not constitute intent, nor 

does reckless or wanton conduct . . . .” Id. at 917 (quotations and citation 

omitted). That an employer believes “someone may, or even probably will, 

eventually get hurt if a workplace practice is continued does not rise to the 

level of intentional tort . . . .” Id. at 916 (quotations and citation omitted). 

Populars’s argument is straightforward. First, he notes that the MEA 

tanker had an illegible safety data sheet but was nevertheless encoded in 

Trimac’s computer system as containing MDI. This means, says Populars, 

that Trimac intentionally coded the tanker as containing MDI, even though 

only the tanker’s placard—and not its data sheet—supported that 

conclusion. Populars then argues that because the tanker actually contained 

MEA, not MDI, his injury was substantially certain to occur because the two 

chemicals are incompatible.

But there’s a problem with that argument. Populars fails to show that 

Trimac knew it mislabeled the tanker. It is not enough that Trimac 

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intentionally coded into its system that the tanker contained MDI. Doing so 

may have been reasonable, negligent, or reckless—none of which sustains a 

suit under § 23:1032(B). Populars instead needed to demonstrate that 

Trimac (or a reasonable company in Trimac’s position) knew this designation 

was wrong, and, therefore, knew that Populars’s injury was inevitable. 

Despite claiming that “Trimac knew it possessed chemicals that would 

produce a violent exothermic reaction when mixed together,” Populars 

points to no evidence to support that assertion. Without any such knowledge, 

Trimac cannot reasonably be said to have intended Populars’s harm.

All Populars shows is that Trimac followed the tanker’s placard and 

coded it as containing MDI. He does not show how Trimac knew, given those 

actions, that his injury was substantially certain to occur. All told, then, the 

district court did not err in granting Trimac summary judgment.

AFFIRMED.

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