Cote v. City of Shreveport

73 So. 3d 435, 2011 La. App. LEXIS 1077, 2011 WL 4375873
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2011
DocketNo. 46,571-CA
StatusPublished
Cited by13 cases

This text of 73 So. 3d 435 (Cote v. City of Shreveport) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cote v. City of Shreveport, 73 So. 3d 435, 2011 La. App. LEXIS 1077, 2011 WL 4375873 (La. Ct. App. 2011).

Opinion

LOLLEY, J.

| ¶ Lisa Cote, individually and on behalf of Mallory Brooke Fuller, appeals the judgment by the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of the City of Shreveport (the “City”), granting the City’s Motion for Summary Judgment. For the following reasons, we affirm the trial court’s judgment.

Facts

On April 2, 2007, at approximately 1:30 a.m., Leon Bell, Jr., entered Cote’s home in the 200 block of Leo Avenue in the Broadmoor neighborhood of Shreveport. Cote was held at knife-point by Bell until Cote’s daughter screamed and Bell fled the residence. After an investigation Bell was arrested and charged with aggravated burglary and second degree kidnaping. Ultimately, Bell pled guilty to second degree kidnaping and is presently serving a nine-year hard labor prison sentence in the Louisiana Department of Corrections.

When Bell committed this crime, he was employed by the City in the water department as an assistant trouble-shooter. On the date of the incident, Bell had been working overtime notifying customers of water being turned off in the Broadmoor area. According to the City’s records, Bell clocked out of work at 8:30 p.m. As stated, the crime at Cote’s home occurred at approximately 1:30 a.m.

As a result of the incident, Cote filed suit against the City. In that lawsuit, Cote maintains that on March 31, 2006 (before the subject incident), Bell came to her house to “check her water,” and she allowed him into her home. According to Cote, Bell repeatedly returned to her home, but |2she did not allow him in on those subsequent visits. She also alleges that another time, Bell attempted to enter her home through the back door, but eventually left her property. Cote claims that she informed the City on June 1, 2006, of these incidents with Bell; however, the City has no record of a complaint made against Bell.

In her petition, Cote contends that the City should be held vicariously liable to her, individually and on behalf of the minor child, because the damages she suffered were a result of Bell acting within the course and scope of his employment with the City. She further alleges that the City was negligent for: failing to report Bell as being dangerous; hiring someone with dangerous propensities; not suspending or discharging Bell after being advised of his previous behavior; and, failing to warn the public, particularly Cote, of Bell.

The City moved for summary judgment, asserting that if the facts as alleged in Cote’s petition were taken as true, the City could not be held liable for Bell’s intentional criminal actions, because at such time Bell was not acting in the course and scope of his employment. The trial court rendered judgment dismissing all of Cote’s claims, and the instant appeal ensued.

[438]*438Discussion

On appeal, Cote argues that the trial court erred in granting summary judgment in favor of the City because there exist material issues of fact in dispute. Specifically, Cote maintains that material facts are in dispute on | ¡¡whether the City was vicariously liable for Bell’s actions, and whether it was negligent in retaining Bell as an employee. We disagree.

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880; Adams v. JPD Energy Inc., 45,420 (La.App.2d Cir.08/11/10), 46 So.3d 751, writ denied, 2010-2052 (La.11/12/10), 49 So.3d 892. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Sensebe v. Canal Indem. Co., 2010-0703 (La.01/28/11), 58 So.3d 441. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment is usually not appropriate for claims based on subjective facts such as motive, intent, good faith, knowledge and malice. Phipps v. Schupp, 2009-2037 (La.07/06/10), 45 So.3d 593; Johnson v. Pinnergy Ltd,., 46,188 (La.App.2d Cir.04/13/11), 63 So.3d 302. However, summary judgment may be granted on subjective intent issues when no genuine issue of material facts exists concerning the pertinent intent. Phipps v. Schupp, supra; Johnson v. Pinnergy Ltd., supra.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary ^judgment is appropriate. Sensebe v. Canal Indem. Co., supra; Tillman v. Eldridge, 44,460 (La.App.2d Cir.07/15/09), 17 So.3d 69.

Vicarious Liability

An employer can be vicariously liable both for its own intentional acts and the intentional acts of its employees. Jones v. Thomas, 426 So.2d 609 (La.1983). The employer’s liability, however, extends only to those acts which are within the course and scope of the injuring employee’s employment. La. C.C. art. 2320; Baumeister v. Plunkett, 95-2270 (La.05/21/96), 673 So.2d 994; Garcia v. Furnace and Tube Service, Inc., 40,517 (La.App.2d Cir.01/27/06), 921 So.2d 205.

The course of employment refers to time and place. The scope of employment test examines the employment-related risk of injury. For the employer to be vicariously liable, the tortious conduct of the employee must be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Garcia, supra; Stacy v. Minit Oil Change, Inc., 38,439 (La.App.2d Cir.05/12/04), 874 So.2d 384.

In LeBrane v. Lewis, 292 So.2d 216 (La.1974), the Louisiana Supreme Court articulated four factors in holding an employer liable for its employee’s actions in stabbing a fellow employee:

(1) whether the tortious act was primarily employment rooted;
[439]*439|a(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and,
(4) whether it occurred during the hours of employment.

A finding of scope of employment hinges on the predominant motive of the tortfeasing employee, whether the purpose of serving the employer’s business actuated the employee to any appreciable extent. Garcia, supra; Patrick v. Poisso, 38,841 (La.App.2d Cir.09/22/04), 882 So.2d 686. Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Id.

In Johnson v. Littleton, 45,323 (La.App.2d Cir.05/19/10), 37 So.3d 542, a McDonald’s employee threw hot french-fry grease on a customer with whom she had an acrimonious history, causing the victim serious burns to her body. After considering the LeBrane

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73 So. 3d 435, 2011 La. App. LEXIS 1077, 2011 WL 4375873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cote-v-city-of-shreveport-lactapp-2011.