Emoakemeh v. Southern University

654 So. 2d 474, 1995 WL 240718
CourtLouisiana Court of Appeal
DecidedApril 7, 1995
DocketCA 94 1194
StatusPublished
Cited by12 cases

This text of 654 So. 2d 474 (Emoakemeh v. Southern University) 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
Emoakemeh v. Southern University, 654 So. 2d 474, 1995 WL 240718 (La. Ct. App. 1995).

Opinion

654 So.2d 474 (1995)

Smart EMOAKEMEH
v.
SOUTHERN UNIVERSITY, Raymond Byrd Arvie, Dennis Ray Taylor, Jonathan K. Thornton, and Insurance Companies A, B, C and D.

No. CA 94 1194.

Court of Appeal of Louisiana, First Circuit.

April 7, 1995.

*475 John W. deGravelles, Taylor L. Caffery, Baton Rouge, for appellee plaintiff Smart Emoakemeh.

W. Steven Mannear, Baton Rouge, for appellant defendant Southern University.

Cedric A. Upshaw, Baton Rouge, and Arthur R. Thomas, Baton Rouge, for appellee Raymond Byrd Arvie.

Before FOIL, WHIPPLE and KUHN, JJ.

FOIL, Judge.

This appeal challenges a trial court's liability and quantum determinations, as well as the trial court's assessment of court costs to the successful plaintiff. After a thorough review of the record, we affirm the liability and quantum rulings, but reverse the cost assessment.

BACKGROUND

This tort litigation was filed by Smart Emoakemeh, a Nigerian national, who was injured by a gunshot wound during an altercation in a dormitory at the Southern University campus in Baton Rouge. Plaintiff named as defendants Raymond Arvie, who fired the shot, Dennis Taylor, who owned the gun, and Jonathan Thornton, a participant in the altercation. He also sued the State of Louisiana, through the Southern University Board of Supervisors, (Southern) on theories of negligence and vicarious liability under La.Civ.Code art. 2320 as the employer of defendants Arvie and Taylor.

Following a trial, the court ruled that Arvie was 90% at fault in causing plaintiff's injuries, while Taylor was found to be 10% at fault. The court found Southern vicariously liable as the employer of Arvie and Taylor. Plaintiff was awarded damages in the amount of $60,905.00, consisting of: $4,905.00 for past medical expenses; $12,000.00 for pain and suffering; $38,000.00 for disability; and $6,000.00 for mental anguish and distress. *476 The court also assessed plaintiff with all court costs, including expert witness fees in the amount of $650.00.

Southern took this appeal, contesting the trial court's liability ruling. Plaintiff answered the appeal, challenging the amount of the damage award as impermissibly low, as well as the trial court's assessment of costs.

LIABILITY

The facts contained in the record which are pertinent to the liability issue are as follows: Plaintiff attended Southern on a tennis scholarship, and was acquainted with Jonathan Thornton. Raymond Arvie and Dennis Taylor were enrolled in Southern's graduate program, and were employed by Southern as resident assistants at Jones Hall. On July 20, 1988, Arvie observed that Thornton, a Jones Hall resident, was not wearing a shirt in violation of dorm rules. Arvie approached Thornton and told him that he had broken the dorm rules. A verbal dispute ensued between the two men, which escalated. Arvie obtained Taylor's permission to get a gun Taylor had stored in his dorm room. Thereafter, with the weapon concealed in his pocket, Arvie found Thornton and the two continued arguing. Plaintiff observed the dispute, and attempted to intervene. At some point, a shot was fired by Arvie, and the bullet hit plaintiff in the right thigh.

The record reflects that as resident assistants, Arvie and Taylor were responsible for enforcing the dorm's regulations. On the night in question, they were on duty after having relieved the head resident. Southern's manual for College Work Study Students states that graduate assistants are responsible for observing and assisting the head resident in regulating student behavior, and are responsible for relieving the head resident and assisting the head resident in providing 24 hour per day coverage.

Southern's Code of Conduct prohibits students from possessing dangerous weapons. Arvie testified that he knew he was in violation of his employer's rules by having a weapon in his possession, but stated that he felt he needed protection during the altercation with Thornton. He relayed that Thornton had been having disputes with a number of the dorm's residents, and some individuals were afraid of him. Arvie testified that Thornton had threatened him with bodily harm in the past. He further attested that the discharge of the weapon was entirely accidental, and he had no intention to hit either Thornton or plaintiff when the gun went off.

Vicarious liability is based on La.Civ.Code art. 2320, which states that "[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." Under this article, liability extends only to the employee's tortious conduct that is within the course and scope of the employment. Orgeron v. McDonald, 93-1353, p. 4 (La. 7/5/94); 639 So.2d 224, 226. Whether an employee is acting within the course and scope of his employment is a question that can only be answered by general rules because of the unending contexts in which the question may arise. Id.

As a general rule, the jurisprudence has identified four factors to consider in making a vicarious liability determination, including whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during work hours; and (4) occurred on the employer's premises. LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974); Samuels v. Southern Baptist Hospital, 594 So.2d 571, 573 (La.App. 4th Cir.), writ denied, 599 So.2d 316 (La.1992). It is not necessary that each of the factors be present in each case, and each case must be decided on its own merits. Id. Under the LeBrane test, an employer is responsible for the negligent acts of its employee when the conduct is so closely connected it time, place and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business. Orgeron v. McDonald, 93-1353, p. 4; 639 So.2d at 227. The scope of the risks attributable to an employer increases with the amount of authority and freedom of action granted to the employee in performing the assigned tasks. Ermert v. Hartford Insurance *477 Company, 559 So.2d 467, 477 (La.1990). However, an employer is not responsible for an employee's conduct that is motivated by purely personal considerations entirely extraneous to the employer's interests. LeBrane v. Lewis, 292 So.2d at 218.

In this case, the tortious acts occurred on the employer's premises during the hours of employment. However, Southern contends that its employees' acts were clearly outside the scope of their employment responsibilities. Southern urges that the conduct of Arvie and Taylor which led to the negligent discharge of the weapon was not even remotely related to their employment responsibilities as resident assistants. First, it is submitted that resident assistants are responsible only for identifying and reporting dorm violations, and those responsibilities in no way include confronting students about dorm infractions, arguing and fighting with students, or shooting at anyone. Secondly, Southern points out that Arvie and Taylor's conduct in possessing the gun is strictly prohibited by Southern's Rules of Conduct.

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Cite This Page — Counsel Stack

Bluebook (online)
654 So. 2d 474, 1995 WL 240718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emoakemeh-v-southern-university-lactapp-1995.