Cynthia Walker v. Dollar Tree Stores, Inc., Safety National Casualty Corporation, and Joseph Rashaun Wimberly

• Court: Louisiana Court of Appeal
• Decided: April 14, 2021
• Docket: 53,898-CA
• Status: Published

Opinion

Judgment rendered April 14, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 53,898-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

CYNTHIA WALKER Plaintiff-Appellant

versus

DOLLAR TREE STORES, INC., Defendants-Appellees SAFETY NATIONAL CASUALTY CORPORATION, AND JOSEPH RASHAUN WIMBERLY

Appealed from the Second Judicial District Court for the Parish of Jackson, Louisiana Trial Court No. 35,943

Honorable Jimmy C. Teat, Judge

THE McGLOTHEN LAW FIRM, LLC Counsel for Appellant By: Terry McGlothen

BREAZEALE, SACHSE & WILSON, LLP Counsel for Appellees, By: Kelsey A. Clark Dollar Tree Stores, Inc. and Safety National

THE TRUITT LAW FIRM Counsel for Appellee, By: Jack E. Truitt Joseph R. Wimberly

Before STEPHENS, THOMPSON, and BLEICH (Pro Tempore), JJ. BLEICH, J. (Pro Tempore).

The plaintiff, Cynthia Walker, appeals a judgment granting the

exception of no cause of action filed by the defendants, Dollar Tree Stores,

Inc. (“Dollar Tree”), and Safety National Casualty Corporation (“Safety

National”). The trial court dismissed all of plaintiff’s claims against Dollar

Tree and Safety National. For the following reasons, we affirm.

FACTS ALLEGED

On September 25, 2018, Cynthia Walker (“Walker”) went to the

Dollar Tree store located on Old Winnfield Road in Jonesboro. While

shopping, Walker noticed that a store employee, Joseph Wimberly

(“Wimberly”), seemed to be following her down multiple aisles. Then, in

one aisle, Wimberly physically bumped into Walker while he was apparently

stocking items on a shelf and he apologized. Then, while Walker was in an

aisle near the back of the store, Wimberly approached and asked about her

interest in a product. When Walker again looked at the shelf and turned her

back toward Wimberly, he suddenly stepped behind her and started rubbing

himself up and down on her buttocks. After Walker cried out and said to

stop this unwanted touching, Wimberly scurried away. Walker then

reported the incident to other store employees and to the Jonesboro Police

Department.

TRIAL COURT PROCEEDINGS

Subsequently, the plaintiff, Cynthia Walker, filed a petition for

damages against the defendants, Wimberly, Dollar Tree, and its insurer,

Safety National. Plaintiff alleged that Dollar Tree was vicariously liable for

the injuries caused by the acts of its employee and that Safety National had

issued an insurance policy providing coverage for plaintiff’s damages. In response, Dollar Tree and Safety National filed an exception of no cause of

action asserting that plaintiff’s petition failed to plead sufficient facts to

show that Wimberly was acting in the course and scope of his employment.

Plaintiff then filed an amended petition alleging multiple claims

against the defendants, including negligence under La. C.C. art. 2316 and

commission of sexual battery against Wimberly, along with negligence

under La. C.C. art. 2315, violation of the Merchant Liability Statute,

vicarious liability, and liability for bad faith handling of claims under La.

R.S. 22:1892 and 22:1973 against Dollar Tree and Safety National.

Defendants, Dollar Tree and Safety National, filed a second exception of no

cause of action alleging that the amended petition failed to state facts

showing Dollar Tree’s independent negligence or that Wimberly’s acts were

reasonably incidental to his employment duties. Defendants also alleged

that the Merchant Liability Statute did not apply in this matter and that

plaintiff could not establish the elements of her claim for bad faith. In her

opposition to the exception, plaintiff acknowledged that she did not have a

claim under the Merchant Liability Statute.

After a hearing on the exception, the trial court granted the

defendants’ exception of no cause of action, citing Manning v. Dillard Dept.

Stores, Inc., 99-1179 (La. 12/10/99), 753 So. 2d 163; Baumeister v. Plunkett,

95-2270 (La. 5/21/96), 673 So. 2d 994; and Guillaume v. Brookshire

Grocery Co., 50,745 (La. App. 2 Cir. 6/29/16), 198 So. 3d 204. The trial

court rendered judgment granting the exception and dismissing all claims of

plaintiff against Dollar Tree and Safety National. Plaintiff appeals the

judgment.

2 DISCUSSION

The plaintiff contends the trial court erred in granting the exception of

no cause of action. Plaintiff argues that the petition alleges sufficient facts

to support a cause of action against defendants for negligence, vicarious

liability, and bad faith.

The function of the exception of no cause of action is to test the legal

sufficiency of the petition by determining whether the law affords a remedy

based on the facts alleged in the pleading. Fink v. Bryant, 01-0987 (La.

11/28/01), 801 So. 2d 346. No evidence may be introduced to support or

controvert the objection that the petition fails to state a cause of action. La.

C.C.P. art. 931. When considering the issues raised by the exception, the

well-pleaded facts in the petition must be accepted as true. A petition should

not be dismissed for failure to state a cause of action unless it appears

beyond doubt that plaintiff can prove no set of facts in support of any claim

which would entitle him to relief. Fink v. Bryant, supra. In reviewing a trial

court’s ruling on an exception of no cause of action, an appellate court

applies a de novo standard of review. Kinchen v. Livingston Parish Council,

07-0478 (La. 10/16/07), 967 So.2d 1137.

Employers are liable for the damage caused by their employees in

performing the functions for which they are employed. La. C.C. art. 2320.

An employer is liable for a tort committed by an employee if, at the time, the

employee was acting within the course and scope of his employment. The

course of employment refers to time and place. The scope of employment

test examines the employment-related risk of injury. Baumeister v. Plunkett,

supra; Stacy v. Minit Oil Change, Inc., 38,439 (La. App. 2 Cir. 5/12/04), 874

So. 2d 384. A finding of scope of employment hinges on the predominant 3 motive of the tortfeasing employee, whether the purpose of serving the

employer’s business actuated the employee to any appreciable extent.

Ermert v. Hartford Ins. Co., 559 So. 2d 467 (La. 1990).

In determining whether an employer is liable for a worker’s acts, the

factors to consider include whether: 1) the tortious act was primarily

employment rooted, 2) the act was reasonably incidental to the performance

of the job duties, 3) the act occurred on the employer’s premises, and 4) the

act occurred during the hours of employment. LeBrane v. Lewis, 292 So. 2d

216 (La. 1974). These LeBrane factors are not exclusive and plaintiff need

not meet all of the factors to impose liability. Even if the primary motive of

the worker is to benefit himself, his tortious act may be within the scope of

employment. Miller v. Keating, 349 So.2d 265 (La. 1977). An employer is

not vicariously liable merely because an employee commits an intentional

tort on the business premises during work hours. Baumeister v. Plunkett,

supra; Stacy v. Minit Oil Change, supra.

For an employer to be vicariously liable for its employee’s tortious

acts, the conduct 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 extraneous to the employer’s interest.

Baumeister v. Plunkett, supra. The particular facts of each case must be

analyzed to determine whether the employee’s tortious conduct was within

the course and scope of his employment. Baumeister v. Plunkett, supra.

In this case, plaintiff’s petition alleges that Wimberly was performing

job duties when he followed plaintiff down multiple aisles seemingly as part

of the store’s loss prevention practices, that he physically bumped into her 4 while stocking shelves, and then asked her about a product to get closer to

her. The defendants assert that the petition’s allegations do not show that

Wimberly’s tortious act was reasonably incidental to his work duties and do

not state a cause of action for vicarious liability against them.

Based on the scant allegations of the petition that Wimberly’s harmful

conduct occurred at the employer’s premises during work hours while he

was performing his job duties, we find that plaintiff’s petition does not state

a cause of action for vicarious liability. Thus, the trial court did not err in

granting the exception of no cause of action on this issue.

Plaintiff contends the trial court erred in granting the exception of no

cause of action dismissing her claim of negligence under La. C.C. art. 2315.

A claim against an employer for the tort of an employee based on the

employer’s alleged direct negligence in hiring, retaining, or supervising an

employee is generally governed by the duty/risk analysis applied in

negligence cases. Griffin v. Kmart Corp., 00-1334 (La. App. 5 Cir.

11/28/00), 776 So. 2d 1226. Liability in negligence cases is assessed by

applying the duty/risk analysis, which involves a determination of whether

1) the defendant owed a duty of care to plaintiff, 2) the defendant breached

that duty, 3) the breach was a cause-in-fact and a legal cause of the harm,

and 4) the plaintiff was damaged. Hanks v. Entergy Corp., 06-477 (La.

12/18/06), 944 So. 2d 564.

In this case, the petition alleges that Dollar Tree, through the use of

security cameras, had a duty to protect plaintiff from inappropriate touching

by an employee and breached that duty by failing to provide proper training

and adequate supervision of the employee to prevent the battery. Plaintiff

also alleges that Dollar Tree breached a duty to investigate the incident that 5 caused her harm by failing to preserve and provide the police with any video

evidence that existed and that this negligence was a cause of her harm.

Based upon the allegations in the petition taken as a whole, plaintiff

did not sufficiently state a cause of action for negligence against Dollar Tree

for failing to supervise its employee and to prevent harm to her. Allegations

of purported duties, absent accompanying factual allegations of how the

duties were breached, are insufficient to present a cause of action. Thus, the

trial court was correct in dismissing this claim.

Plaintiff contends the trial court erred in dismissing her claim of bad

faith by Dollar Tree and Safety National in handling her injury claim.

Although plaintiff cited R.S. 22:1892 and 22:1973 in raising the claim of

bad faith, the petition’s allegations that defendants told the police there was

no video evidence of the incident reported by plaintiff, but also represented

to plaintiff that video evidence of the incident existed that did not support

her allegation, would seem to state a cause of action under the Louisiana

Unfair Trade Practices and Consumer Protection Act (“LUTPA”).

Unfair or deceptive acts or practices in the conduct of any trade or

commerce are unlawful. La. R.S. 51:1405. A person who suffers any

ascertainable loss of money or movable property as a result of the use by

another person of an unfair or deceptive act or practice declared unlawful by

Section 1405 may bring an action individually to recover actual damages.

La. R.S. 51:1409. Acts constituting unfair or deceptive practices are not

specifically defined in the LUTPA but are determined on a case-by-case

basis. Generally, acts which constitute unfair or deceptive practices involve

fraud, misrepresentation, or other unethical conduct. Cupp Drug Store, Inc.

6 v. Blue Cross & Blue Shield of La., Inc., 49,482 (La. App. 2 Cir. 1/7/15),

161 So. 3d 860, writ denied, 15-0571 (La. 5/22/15), 171 So. 3d 249.

In this case, the petition alleges that plaintiff’s attorney was told by

Safety National that the store’s video evidence did not support her allegation

against Wimberly and had been given to police, but later the attorney was

allegedly informed by the police investigator that Dollar Tree had denied

that any video of the incident existed. The range of prohibited practices

under LUTPA is relatively narrow. Cupp Drug Store, Inc. v. Blue Cross &

Blue Shield, supra. These allegations do not rise to that contemplated as

unfair trade practices. The trial court was correct in sustaining the exception

of no cause of action as to this issue.

Concerning the allegations of bad faith in settling plaintiff’s claim

pursuant to La. R.S. 22:1892 and 22:1973, these statutes apply only to

insurers and only when a potentially viable underlying claim has been

established. Dollar Tree is not an “insurer” as defined in the Insurance Code

because it is not in the business of issuing insurance contracts. Rawls v. City

of Bastrop, 38,449 (La. App. 2 Cir. 5/12/04), 873 So. 2d 934. The statutes

do not provide a cause of action against an insurer for bad faith absent a

valid underlying insurance claim. Lee v. Sapp, 17-0490 (La. App. 4 Cir.

12/6/17), 234 So. 3d 122; Clausen v. Fidelity & Deposit Co. of Md., 95-0504

(La. App. 1 Cir. 8/4/95), 660 So. 2d 83, writ denied, 95-2489 (La. 1/12/96),

666 So. 2d 320. As a third-party claimant, plaintiff failed to assert any

qualifying claims under Section 1973(B) and did not state a cause of action

under the statutes. Thus, the trial court, as to all allegations in the petition,

did not err in granting the peremptory exception of no cause of action.

7 CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Costs of this appeal are assessed to the plaintiff, Cynthia Walker.

AFFIRMED.