Holt v. Torino

117 So. 3d 182, 2012 La.App. 1 Cir. 1579, 2013 WL 1786485, 2013 La. App. LEXIS 832
CourtLouisiana Court of Appeal
DecidedApril 26, 2013
DocketNo. 2012 CA 1579
StatusPublished
Cited by5 cases

This text of 117 So. 3d 182 (Holt v. Torino) 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
Holt v. Torino, 117 So. 3d 182, 2012 La.App. 1 Cir. 1579, 2013 WL 1786485, 2013 La. App. LEXIS 832 (La. Ct. App. 2013).

Opinion

HIGGINBOTHAM, J.

| ;>This suit in tort for damages arises out of an automobile accident that occurred between plaintiff, Milton Holt, and defendant, Tammy M. Torino. This appeal is from the granting of a summary judgment in favor of RPM Pizza, LLC (RPM Pizza) and Domino’s Pizza LLC (Dominos), in which the trial court found that defendant Torino was not in the course and scope of her employment with RPM Pizza and Do-minos at the time of the accident. Plaintiffs, Milton Holt, individually and on behalf of his minor children, Ciara Holt and Jase Holt, and Amy Holt individually and on behalf of her minor children, Mariah Miller and Tristan Miller, collectively “the Holts,” appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 11, 2009, Torino, an employee of RPM Pizza, a franchisee of Dominos, clocked in for her shift at approximately 3:00 p.m. She left early from her shift “around 7:25 p.m.” to go home because she was feeling tired. Around 8:20 p.m. while driving home, she crossed the center line into the other lane of traffic on North Flannery Road in Baton Rouge, Louisiana and struck head-on a vehicle driven by Milton Holt. As a result of the [184]*184accident, the Holts suffered damages. The Holts filed suit on December 3, 2010, naming as defendants: (1) Tammy M. Torino; (2) Direct General Insurance Company of Louisiana; (3) RPM Pizza, as Tori-no’s employer; (4) Dominos, as franchisor of RPM Pizza; and (5) State Farm Mutual Automobile Insurance Company, by amended petition, as underinsured motorist insurer for Milton Holt.1 Plaintiffs alleged that at the time of the accident Torino was in the course and scope of her employment with RPM Pizza and Domi-nos.

|sOn February 13, 2012, RPM Pizza and Dominos filed a motion for summary judgment, which requested that the claims against them be dismissed because Torino was not employed by Dominos and RPM Pizza owed no duty to the plaintiffs. Plaintiffs filed a counter motion for partial summary judgment on April 2, 2012, requesting that the trial court find Torino was in the course of her employment at the time of the accident.2 On May 31, 2012, judgment was signed granting summary judgment in favor of and dismissing all claims against RPM Pizza and Domi-nos, and denying plaintiffs’ motion for partial summary judgment.3

LAW AND ANALYSIS

Plaintiffs contend that the trial court erred in granting RPM Pizza and Domino’s motion for summary judgment and in denying plaintiffs’ counter motion for summary judgment on the issues of RPM Pizza’s negligence and vicarious liability and Domino’s negligence.

A. Summary Judgment Law

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. Granda v. State Farm Mutual Insurance Company, 2004-2012 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 701. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

On a motion for summary judgment, the initial burden of proof is on the moving party. However, if the moving party will not bear the burden of proof at trial on the matter before the court, the moving party’s burden of proof on the [ ¿motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient to establish that it will be able to satisfy its eviden-tiary burden of proof at trial. Failure to do so shows that there is no genuine issue of material fact. La.Code Civ. P. art. 966(C)(2). Accordingly, once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 [185]*185(La.6/30/00), 764 So.2d 37, 40; see also La.Code Civ. P. art. 967(B).

Summary judgments are reviewed on appeal de novo. Granda, 935 So.2d at 701. Thus, this court uses the same criteria as the trial court in determining whether summary judgment is appropriate — whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002, 1006. A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. If, on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Fernandez v. Hebert, 2006-1558 (La.App. 1st Cir.5/4/07), 961 So.2d 404, 408, ivrit denied, 2007-1123 (La.9/21/07), 964 So.2d 333.

A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 2005-1233 (La.App. 1st Cir.6/9/06), 938 So.2d 766, 769. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can only be seen in light |sof the substantive law applicable to the case. Dickerson v. Piccadilly Restaurants, Inc., 99-2633 (La.App. 1st Cir.12/22/00), 785 So.2d 842, 844.

B. Vicarious Liability

Under Louisiana law, an employer is answerable for the damage occasioned by its servant in the exercise of the functions in which the servant is employed. Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, 510. La. Civ.Code art. 2320. Specifically, an employer is liable for its employee’s torts committed if, at the time, the employee was acting within the course and scope of his employment. Id.; Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996. An employee is acting within the course and scope of his employment when the employee’s action 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.” Timmons, 761 So.2d at 510.

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer’s premises. Baumeister, 673 So.2d at 996-997; see also LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). It is not necessary that each factor is present in each case, and each case must be decided on its own merits. Ellender, 2006-2005 (La.App. 1st Cir.6/15/07), 965 So.2d at 901; Baumeister, 673 So.2d at 997.

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117 So. 3d 182, 2012 La.App. 1 Cir. 1579, 2013 WL 1786485, 2013 La. App. LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holt-v-torino-lactapp-2013.