Landry v. Fincke

714 So. 2d 826, 1998 WL 251804
CourtLouisiana Court of Appeal
DecidedMay 20, 1998
Docket98-90
StatusPublished
Cited by6 cases

This text of 714 So. 2d 826 (Landry v. Fincke) 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
Landry v. Fincke, 714 So. 2d 826, 1998 WL 251804 (La. Ct. App. 1998).

Opinion

714 So.2d 826 (1998)

Ted V. LANDRY and Therese Landry, Individually and d/b/a Ted Landry Transports, Plaintiffs-Appellees,
v.
Erick L. FINCKE and Southern Siding Company, Inc., Defendants-Appellants.

No. 98-90.

Court of Appeal of Louisiana, Third Circuit.

May 20, 1998.

*827 Roger Chadwick Edwards, Jr., Abbeville, for Ted Landry et ux.

Gordon Blane Clark, Jr., Baton Rouge, for Southern Siding Co., Inc.

Before THIBODEAUX, SAUNDERS and DECUIR, JJ.

THIBODEAUX, Judge.

Ted and Therese Landry, individually and d/b/a Ted Landry Transports, filed suit against Southern Siding Co. Inc. (hereinafter "Southern Siding") seeking damages for injuries sustained in an automobile accident involving the defendant's employee, Eric Fincke. The plaintiffs alleged that Southern Siding should be held vicariously liable for the conduct of its employee, Mr. Fincke, who was acting in the course and scope of his employment at the time of the accident.

At trial, both parties filed motions for summary judgment on the issue of the defendant's liability. Upon finding that Mr. Fincke was acting within the course and scope of his employment at the time of the accident, the trial court held the defendant vicariously liable for the damage sustained by the plaintiffs. The trial court granted the plaintiffs' motion for partial summary judgment and denied the defendant's motion for summary judgment. It properly certified the judgment as a final judgment pursuant to La. Code Civ.P. art. 1915(A)(3). From this judgment, the defendant appeals.

Based on the following reasons, we affirm the judgment of the trial court granting partial summary judgment in favor of the plaintiffs and denying the defendant's motion for summary judgment.

I.

ISSUES

We shall consider whether the trial court erred in holding Southern Siding vicariously liable for the conduct of its employee, Eric Fincke, who was involved in an automobile accident which injured the plaintiffs, Ted and Therese Landry.

*828 II.

FACTS

On June 3, 1997, around 4:00 p.m., Eric Fincke departed from one of Southern Siding's job sites, where he had been called upon to deliver materials and conduct an inspection thereon. Upon leaving the site, Mr. Fincke traveled west on La. Highway 699. As he approached the intersection of Beau Road and Highway 699, Mr. Fincke became inadvertently distracted by looking at homes situated along the right side of Highway 699. When his attention returned to the roadway, Mr. Fincke noticed he failed to yield at a stop sign. Mr. Fincke applied his brakes, but his vehicle skidded through the intersection striking the side of the Landrys' truck.

On June 20, 1997, Ted and Therese Landry, individually and d/b/a Ted Landry Transports, filed a suit for damages against Eric Fincke and his insurer, Financial Indemnity Co., as well as his employer, Southern Siding. Thereafter, Mr. Fincke was declared bankrupt, and his insurer, Financial Indemnity Co., tendered the full policy limits.

The plaintiffs pursued their action against Southern Siding alleging that Southern Siding was vicariously liable for all damage caused by its employee, Eric Fincke, while acting in the course and scope of his employment. The fault of Fincke in causing the accident was undisputed. The sole remaining issue was whether or not Mr. Fincke was acting within the course and scope of his employment when the accident occurred so as to subject his employer, Southern Siding, to vicarious liability.

III.

LAW & DISCUSSION

Standard of Review

As a general principle, "[a]ppellate courts review summary judgments de novo, under the same criteria which governs the district court's consideration of the appropriateness of summary judgment." Potter v. First Federal Savings & Loan Ass'n. of Scotlandville, 615 So.2d 318 (La.1993), citing Schroeder v. Board of Sup'rs of Louisiana State University, 591 So.2d 342 (La.1991).

La.Code Civ.P. art. 966[1], which governs the law applicable to summary judgment, in pertinent part, provides:

C.(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
E. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.

Thus, "[a] motion for summary judgment is properly granted only 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." *829 Hayes v. Autin, 96-287, p. 5 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97); 690 So.2d 41.

The burden of production remains with the mover to show that no material issues of fact exist. Id. The mover must present supportive evidence that the motion for summary judgment is warranted. Id. Once the mover has made a prima facie showing that the motion for summary judgment should be granted, the burden of production shifts to the nonmoving party to present evidence demonstrating the existence of issues of material fact which preclude summary judgment. Id.

In this suit, both parties contend there are no genuine issues of material fact present. Neither party disputes the factual circumstances of this suit. Therefore, in the absence of any factual disputes, we find that the suit was properly submitted to the trial court for its consideration of summary judgment. We must now determine whether the trial court's granting of partial summary judgment in favor of the plaintiffs was correct as a matter of law.

Vicarious Liability of Southern Siding

The plaintiffs contend that, at the time of the accident, Mr. Fincke had recently departed from one of his employer's job sites and was operating his personal vehicle while under the control of his employer and in the furtherance of his employer's objective. Therefore, the plaintiffs argue Southern Siding, should be held vicariously liable for all damage caused by its employee, Eric Fincke, while acting in the course and scope of his employment.

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Cite This Page — Counsel Stack

Bluebook (online)
714 So. 2d 826, 1998 WL 251804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-fincke-lactapp-1998.