Patrick v. Poisso

882 So. 2d 686, 2004 WL 2101809
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2004
Docket38,841-CA
StatusPublished
Cited by6 cases

This text of 882 So. 2d 686 (Patrick v. Poisso) 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
Patrick v. Poisso, 882 So. 2d 686, 2004 WL 2101809 (La. Ct. App. 2004).

Opinion

882 So.2d 686 (2004)

Eric PATRICK and Alvin Hebert, Plaintiffs-Appellants
v.
Bobby J. POISSO, The City of Winnfield, Louisiana and ABC Insurance Company, Defendants-Appellees.

No. 38,841-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 2004.

*688 Decuir & Clark, by Winston G. Decuir, Sr., for Appellants.

Hudson, Potts & Bernstein, by Jay P. Adams, Monroe, for Appellee City of Winnfield.

Before BROWN, STEWART and GASKINS, JJ.

GASKINS, J.

The plaintiffs, Eric Patrick and Alvin Hebert, appeal a trial court decision granting summary judgment in favor of the City of Winnfield (Winnfield), dismissing their claims for assault and battery allegedly committed by a Winnfield police officer, Bobby J. Poisso. For the following reasons, we affirm the trial court judgment.

FACTS

At the time of this incident on November 26, 1989, the plaintiffs were students at Grambling State University. That Sunday evening, they were returning to school from New Orleans in Mr. Patrick's automobile which had Ohio license plates. The lights on the vehicle would only operate on high beam. Mr. Patrick stated that he tried to pass vehicles to avoid driving behind them with his bright lights on. Bobby J. Poisso, a police officer for the City of Winnfield, was off duty, in his private vehicle, returning from a trip to south Louisiana with his wife and two small children.

Mr. Patrick ended up behind Mr. Poisso with his bright lights on. At one point, Mr. Patrick passed Mr. Poisso and continued on his journey. Mr. Poisso stopped briefly at his parent's home, then continued north. Mr. Patrick again came up behind Mr. Poisso with his bright lights *689 on. Mr. Patrick passed Mr. Poisso again near Dodson, Louisiana, approximately ten miles north of Winnfield. When Mr. Poisso flashed his bright lights, Mr. Patrick made a gesture that he contends was meant to prompt Mr. Poisso to dim his lights.

Mr. Poisso became very angry and attempted to stop Mr. Patrick. Mr. Poisso drove along-side Mr. Patrick's vehicle, displayed his police badge, and ordered Mr. Patrick to pull over. Both men got out of their vehicles. Mr. Hebert remained in the car. Mr. Poisso was armed with a gun and a flashlight.

Mr. Patrick alleged that Mr. Poisso cursed, shouted racial insults and threats, and struck him in the face with either the gun or the flashlight, causing severe injury and the permanent partial loss of vision in one eye. Mr. Poisso then smashed one of the headlights on Mr. Patrick's car and mutilated his Ohio license plate. Mr. Patrick claims that Mr. Poisso threatened Mr. Hebert, telling him to remain in the vehicle. Mr. Poisso left the scene.

In 1990, Mr. Patrick and Mr. Hebert filed the present suit against Mr. Poisso, the City of Winnfield, and ABC Insurance Company. The plaintiffs claimed that Winnfield was on notice of Mr. Poisso's dangerous propensities and his treatment of non-white persons. They asserted that Winnfield was negligent in hiring and training Mr. Poisso and that he acted in the course and scope of his employment in this matter, making Winnfield vicariously liable for his actions.

On June 20, 2003, Winnfield filed a motion for summary judgment, asserting that Mr. Poisso's actions did not occur during the course and scope of his employment as a Winnfield police officer. Winnfield maintained that this was a personal dispute unrelated to Mr. Poisso's official duties. The plaintiffs filed an opposition to the motion for summary judgment, claiming that Mr. Poisso's actions occurred in the course and scope of his employment and that he was acting in furtherance of his employer's objectives when he damaged the plaintiffs. They contended that the damage occurred only because the plaintiffs recognized Mr. Poisso as a police officer. According to the plaintiffs, Winnfield was negligent in the hiring and training of Mr. Poisso. They reasoned that he could not have used his badge to pull them over if he had not been hired by Winnfield. They urged that no harm would have occurred if Mr. Poisso had been properly trained by Winnfield.

On January 5, 2004, the trial court granted summary judgment in favor of Winnfield, dismissing the plaintiffs' claims against it. In finding that Mr. Poisso was not acting in the course and scope of his employment, the court stated that the use of the badge to pull the plaintiffs over was not determinative. Further, the court found that the incident did not take place in the city limits of Winnfield. On January 30, 2004, the matter was certified as a final judgment.

The plaintiffs appealed, arguing that the trial court erred in the standard used in granting Winnfield's motion for summary judgment. They also contend that the trial court erred in finding that Mr. Poisso acted outside the course and scope of his employment and in dismissing the claim of negligent hiring against Winnfield.

SUMMARY JUDGMENT — COURSE AND SCOPE OF EMPLOYMENT

In essence, the plaintiffs contend that the trial court erred in granting summary judgment in this matter because there are disputed issues of material fact. The plaintiffs point out that Mr. Poisso was a police officer, he used his badge to *690 make the traffic stop, he identified himself as a police officer, and the plaintiffs would not have stopped otherwise. Because Mr. Poisso stopped Mr. Patrick for the traffic offenses he witnessed, the plaintiffs contend that Mr. Poisso was acting in the course and scope of his employment. Therefore, the plaintiffs assert that there is a disputed issue of material fact as to whether Mr. Poisso was acting in the course and scope of his employment.

The plaintiffs also argue that the issue of whether Mr. Poisso was acting in the course and scope of his employment is a factual issue, not to be decided on a motion for summary judgment.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether a summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991).

A motion for summary judgment shall be granted "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 the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966A(2); Magnon v. Collins, 1998-2822 (La.7/7/99), 739 So.2d 191; Stacy v. Minit Oil Change, Inc., 38,439 (La.App.2d Cir.5/12/04), 874 So.2d 384.

A fact is "material" when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success or determine the outcome of the legal dispute. Garsee v. Bowie, 37,444 (La.App.2d Cir.8/20/03), 852 So.2d 1156.

The mover has the burden of establishing the absence of material fact. If the mover will not bear the burden of proof at trial on the matter, then he is required to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim or action. La. C.C.P. art. 966C(2).

Once the mover makes a prima facie

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Bluebook (online)
882 So. 2d 686, 2004 WL 2101809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-v-poisso-lactapp-2004.