Migliore v. Gill

81 So. 3d 900, 11 La.App. 5 Cir. 407, 2011 La. App. LEXIS 1506, 2011 WL 6187148
CourtLouisiana Court of Appeal
DecidedDecember 13, 2011
DocketNo. 11-CA-407
StatusPublished
Cited by12 cases

This text of 81 So. 3d 900 (Migliore v. Gill) 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
Migliore v. Gill, 81 So. 3d 900, 11 La.App. 5 Cir. 407, 2011 La. App. LEXIS 1506, 2011 WL 6187148 (La. Ct. App. 2011).

Opinion

MARC E. JOHNSON, Judge.

1 {¡Plaintiffs, Melissa and George Migliore, appeal the granting of summary judgment in favor of defendant, Ochsner Clinic Foundation. For the reasons that follow, we affirm.

Plaintiffs filed a petition for damages on February 2, 2007 against Dr. Javed Gill and Allstate Ins. Co. for injuries Mr. Migl-iore allegedly sustained as the result of a February 8, 2006 automobile accident. Mr. Migliore alleged he was driving his motorcycle eastbound on River Road in Jefferson Parish when a 2001 Honda Odyssey driven by Dr. Gill made a left turn onto River Road from Deckbar Ave. into his path of travel. Mr. Migliore asserted he took evasive action to avoid the accident and drove his motorcycle off the roadway at which time he struck a traffic control sign and sustained serious injury to his shoulder, nervous system and psyche. Mrs. Migliore sought damages for loss of consortium.

Thereafter, plaintiffs filed a supplemental and amending petition adding Ochsner Clinic Foundation (“Ochsner”) as a defendant. Plaintiffs asserted Dr. Gill was in the course and scope of his employment with Ochsner at the time of the |.^accident and, thus, Ochsner was vicariously liable for Dr. Gill’s negligence. Plaintiffs specifically alleged Dr. Gill was “on call” at the time of the accident.

Plaintiffs subsequently filed a motion for partial summary judgment on the issue of Ochsner’s vicarious liability. Ochsner also filed a motion for summary judgment [902]*902seeking dismissal of plaintiffs’ claim that it was vicariously liable for Dr. Gill’s negligence simply because Dr. Gill was “on call” at the time of the accident. After a hearing, the trial court denied plaintiffs’ motion for partial summary judgment and granted Ochsner’s motion for summary judgment dismissing plaintiffs’ claims against Ochs-ner with prejudice.

Plaintiffs filed the instant appeal seeking review of the granting of summary judgment in favor of Ochsner. They argue the trial court erred in finding Dr. Gill was not in the course and scope of his employment with Ochsner at the time of the accident. Plaintiffs maintain Dr. Gill’s “on call” status gave Ochsner significant control over his actions for purposes of vicarious liability.

Appellate courts review the granting or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 98-2512 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975.

A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Facts are material |4if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764, 765 (per curiam). On appeal, this Court must consider whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

Employers are responsible for the damage caused by their employees in the exercise of the functions for which they are employed. La. C.C. art. 2320. An employer is only vicariously liable for an employee’s tortious conduct that is committed within the course and scope of employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226. The “course” of employment refers to time and place while the “scope” of employment refers to employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996.

The Louisiana Supreme Court has explained:

Determination of the course and scope of employment is largely based on policy. The risks which are generated by an employee’s activities while serving his employer’s interests are properly allocated to the employer as a cost of engaging in the enterprise. However, when the party (the alleged employer) upon whom vicarious liability is sought to be imposed had only a marginal relationship with the act which generated the risk and did not benefit by it, the purpose of the policy falls, and the responsibility for preventing the risk is solely upon the tortfeasor who created the risk while performing the act.

Reed v. House of Decor, Inc., 468 So.2d 1159, 1162 (La.1985).

Whether an employee’s conduct is within the course and scope of his employment is a question answerable only by general rules, because of the myriad of [903]*903contexts in which the question may arise. Generally, an employee’s conduct is within the course and scope of his employment “if the conduct is of the kind 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, 639 So.2d at 226-27. The conduct must be “so closely connected in time, place, and causation to [the employee’s] 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.” Baumeister, 673 So.2d at 996 (citations omitted).

The facts in the instant case are undisputed. Dr. Gill was employed by Ochsner as a pathologist. As a condition of his employment, Dr. Gill was required to be “on call” a certain number of weekends per month. On the day of the accident, he was “on call” from 5:00 p.m. until 8:00 a.m. the next morning. While “on call,” Dr. Gill was required to wear a beeper and respond immediately when called by Ochsner. He was expected to physically be at Ochsner within 30 minutes of receiving a call.

The accident at issue occurred around 8:05 p.m., which was during Dr. Gill’s “on call” shift. At the time of the accident, Dr. Gill was driving his own 2001 Honda Odyssey, which he personally insured, and was taking his son to his ex-wife’s house. Dr. Gill was never called to Ochsner during his “on call” shift that day.

Contrary to plaintiffs’ assertion, the mere fact an employee is “on call” does not automatically give rise to employer liability. Rather, an employee’s “on call” status simply gives rise to a question of whether the employee was acting within the scope of his employment at the time of the aeci-dent. As reasoned by the court in Thurmon v. Sellers, 62 S.W.3d 145, 154 (Tenn.Ct.App.2001), quoting Le Elder v. Rice, 21 Cal.App.4th 1604, 26 Cal.Rptr.2d 749 (1994):

Public policy would be ill-served by a rule establishing 24-hour employer liability for on-call employees, regardless of the nature of the employee’s activities at the time of an accident.

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81 So. 3d 900, 11 La.App. 5 Cir. 407, 2011 La. App. LEXIS 1506, 2011 WL 6187148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/migliore-v-gill-lactapp-2011.