Duplantis v. Dillard's Dept. Store

849 So. 2d 675, 2003 WL 21057882
CourtLouisiana Court of Appeal
DecidedMay 9, 2003
Docket2002 CA 0852
StatusPublished
Cited by28 cases

This text of 849 So. 2d 675 (Duplantis v. Dillard's Dept. Store) 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
Duplantis v. Dillard's Dept. Store, 849 So. 2d 675, 2003 WL 21057882 (La. Ct. App. 2003).

Opinion

849 So.2d 675 (2003)

Errol A. DUPLANTIS, Sr. and Glenda Pope Duplantis
v.
DILLARD'S DEPARTMENT STORE, et al.

No. 2002 CA 0852.

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.

*677 Stephen S. Stipelcovich, Law Offices of Michael J. Samanie, Houma, for Plaintiffs-Appellants Errol A. Duplantis, Sr. and Glenda Pope Duplantis.

William F. Dodd, Joseph J. Weigand, Jr., Weigand & Dodd, Houma, for Defendant-Appellee Jerry J. Larpenter, Sheriff for Terrebonne Parish.

Robert B. Butler, III, Law Office of Robert B. Butler, III, Houma, for Donny Pitre.

Before: PARRO, MCDONALD, and CLAIBORNE,[1] JJ.

PARRO, J.

Errol A. Duplantis, Sr. and his wife, Glenda Pope Duplantis, appeal a judgment granting a motion for summary judgment and dismissing their vicarious liability claims against Sheriff Jerry J. Larpenter that were based on the alleged negligence of an off-duty deputy working as a security guard. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Glenda Duplantis, an employee of Dillard's Department Store, Inc. (Dillard's),[2] was injured when a shoplifting suspect tried to escape from a security guard and shoved a swinging door into her. The security guard was Donny Pitre, an offduty deputy with the Terrebonne Parish Sheriff's Office (TPSO), who was working as a paid private security guard at Dillard's when the incident occurred. The shoplifting suspect, Brandon Washington, had tried to run from Pitre after first being confronted by him. With the help of some bystanders, Pitre had managed to capture Washington in a nearby parking lot, had handcuffed him with his hands behind his back, and had brought him back to the loading dock area of Dillard's. While filling out the incident report and waiting for the TPSO to send another deputy to take Washington into custody, Pitre saw Washington step over the handcuffs and bring his hands in front of his body. When Deputy Brent Favalora arrived, he removed Pitre's handcuffs and cuffed Washington with his hands in front of his body. When Favalora went to get his car to bring it to the loading dock area, Washington again tried to escape and, in doing *678 so, pushed a swinging door into Mrs. Duplantis and injured her.

Mr. and Mrs. Duplantis sued Pitre, Favalora, Sheriff Jerry Larpenter, and the sheriff's unnamed insurer,[3] alleging that the negligence of the two deputies was a cause of her injuries and that the sheriff was vicariously liable for the deputies' negligence and independently liable for failing to adequately train the deputies.[4] Pitre filed a motion for summary judgment, alleging that he was a co-employee of Mrs. Duplantis, and therefore, her exclusive remedy against him was in workers' compensation. Sheriff Larpenter also filed a motion for summary judgment, alleging he was not vicariously liable for Pitre's actions or inactions, because Pitre was working for Dillard's and was not in the course and scope of his employment with the TPSO at the time the incident occurred. The trial court granted both motions,[5] and Mr. and Mrs. Duplantis appealed.[6]

The only assignment of error is that the trial court erred in finding that the sheriff was not vicariously liable for the allegedly negligent acts of Pitre. Mr. and Mrs. Duplantis contend that Dillard's and the TPSO were dual employers of Pitre and, therefore, are solidarily liable for his negligence under Louisiana Civil Code article 2320. They also argue that Pitre was in the course and scope of his employment with the TPSO when the accident occurred.[7]

APPLICABLE LAW

The principle of vicarious liability is codified in Louisiana Civil Code article 2320, which provides that an employer is liable for the tortious acts of its employees "in the exercise of the functions in which they are employed." Russell v. Noullet, 98-0816 (La.12/1/98), 721 So.2d 868, 871. This court, in interpreting the language, "in the exercise of the functions in which they are employed," has held that this language is the codal expression of the usual phrase, "in the course and scope of the employment." Romero v. Hogue, 77 So.2d 74, 79 (La.App. 1st Cir.1954). To establish vicarious liability for an employee's negligence pursuant to Article 2320, it must be shown that the employee's general activities at the time of the tort were within the course and scope of his employment. Cooper v. Reed, 02-0575 (La.App. 1st *679 Cir.2/14/03), 845 So.2d 411, 2003 WL 343209. While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996.

For an employer to be vicariously liable for the tortious acts of its employee, 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. LeBrane v. Lewis, 292 So.2d 216, 217-18 (La.1974); Baumeister, 673 So.2d at 996. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objective. Baumeister, 673 So.2d at 996. Generally speaking, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that 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. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226-27. Stated another way, the court must examine whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to the employee's duties; (3) occurred on the employer's premises; and (4) occurred during the hours of employment. LeBrane, 292 So.2d at 218. It is not necessary that each of these factors be present in each case, and each case must be decided on its own merits. However, at a minimum, at least one of these factors must be present for the employer's liability to attach. Maze v. Grogan, 94-501 (La.App. 1st Cir.5/9/97), 694 So.2d 1168, 1170. Factual circumstances to consider are the payment of wages by the employer; the employer's power of control; the employee's duty to perform the particular act; the time, place, and purpose of the act in relation to serving the employer; the relationship between the employee's act and the employer's business; the benefits received by the employer from the act; and the reasonable expectation of the employer that the employee would perform the act. Orgeron, 639 So.2d at 227; Billiot v. Terrebonne Parish Sheriff's Office, 98-0246 (La.App. 1st Cir.2/19/99), 735 So.2d 17, 25, writ denied, 99-1376 (La.7/2/99), 747 So.2d 22.

An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. West v. Clarendon Nat'l Ins. Co., 99-1687 (La. App. 1st Cir.7/31/00), 767 So.2d 877, 879.

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Bluebook (online)
849 So. 2d 675, 2003 WL 21057882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duplantis-v-dillards-dept-store-lactapp-2003.