Timmons v. Silman

675 So. 2d 287
CourtLouisiana Court of Appeal
DecidedMay 10, 1996
Docket28139-CA
StatusPublished
Cited by4 cases

This text of 675 So. 2d 287 (Timmons v. Silman) 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
Timmons v. Silman, 675 So. 2d 287 (La. Ct. App. 1996).

Opinion

675 So.2d 287 (1996)

Michael TIMMONS & Wanda Timmons, Plaintiffs-Appellants,
v.
Stacie Michelle SILMAN, State Farm Fire and Casualty Company and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.

No. 28139-CA.

Court of Appeal of Louisiana, Second Circuit.

May 10, 1996.
Rehearing Denied June 20, 1996.

*288 Guerriero & Guerriero, Joe D. Guerriero, for Plaintiffs-Appellants.

Hudson, Potts & Bernstein, Jan Peter Christiansen, for Defendant-Appellee, State Farm Fire & Casualty Insurance Company.

J. Bachman Lee, for Defendants-Appellees, Stacie M. Silman and State Farm Insurance Company.

Before MARVIN, HIGHTOWER and GASKINS, JJ.

HIGHTOWER, Judge.

In this action arising out of an automobile accident, plaintiffs appeal a summary judgment implictly finding that the defendant driver had not been in the course and scope of her employment at the time of the incident. We affirm.

FACTS AND PROCEDURE

On December 22, 1993, after receiving a bonus check during a holiday luncheon and returning to the law office where she worked as a clerical assistant, Stacie Michelle Silman again departed in order to replenish her employer's postage meter. In accomplishing this task, she drove her personal automobile, as she did almost every day, to the post office located approximately six blocks south of her place of employment in Monroe. Eventually, before returning to the law office, Silman decided to cash her bonus check at a branch bank where she regularly made deposits for her employer as part of her job. In route to that institution located about eighteen blocks northeast of the law office, however, she became involved in a vehicular accident with plaintiff, Michael Timmons.

As a result of the accident, Timmons and his wife filed the present suit against Silman, her automobile liability insurer, and her employer's liability insurer, State Farm Fire & Casualty Insurance Co. Thereafter, maintaining Silman had not been in the course and scope of her employment at the time of the accident, State Farm moved for summary judgment. According to the motion, the employee had been on a personal errand to cash her check after deviating from her work-related post office task. The trial court, upon subsequently finding the requested relief appropriate, dismissed State Farm from the litigation. This appeal by plaintiffs ensued.

DISCUSSION

An employer is answerable for the damages caused by his employee if, at the time the tort is committed, the servant is acting within the scope of his employment, i.e., in the exercise of the functions in which employed. La.C.C. Art. 2320. To find conduct within the course and scope of employment, some or all of the following must be present: the act (1) had been primarily employment rooted; (2) reasonably incidental to the performance of employment duties; (3) occurred during work hours; and (4) happened on the employer's premises. Washington v. Reed, 624 So.2d 465 (La.App.2d Cir.1993), and authorities therein. Even so, there being no hard and fast rule in making that determination, each case must be decided on its own merits and particulars. Washington, supra; Keen v. Pel State Oil Co., Inc., 332 So.2d 286 (La.App.2d Cir.1976), writ denied, 333 So.2d 234 (La.1976); Wright v. Romano, 279 So.2d 735 (La.App. 1st Cir. 1973), writ denied, 281 So.2d 757 (La.1973). But before vicarious liability can arise from Article 2320, the employee's tortious conduct must be so closely connected in time, place, and causation to his employment duties as to constitute a risk of harm attributable to the employer's business. Orgeron v. McDonald, 93-1353 (La. 07/05/94), 639 So.2d 224. Very importantly, such conduct is to be distinguished from that motivated by purely personal considerations entirely extraneous to the employer's interests. Washington, supra.

Analyzing the present case with these considerations in mind, we agree with the trial court that Silman was no longer in the course and scope of her employer's business when she had the accident with Michael Timmons. Although she initially started out to *289 get the postage meter replenished, she clearly made a major deviation from that task when she decided to travel some eighteen blocks in the opposite direction to cash her check at the bank. Indeed, her new objective required that she pass within a block or two of her place of employment before heading toward the branch bank location where she intended to engage in her personal transaction. In terms of "time, place, and causation," Orgeron, supra, at 227, this undertaking exceeded a mere minor digression from the work errand such that the harm resulting from her involvement in the automobile collision cannot be termed "attributable to [her] employer's business," Id. What is more, upon reviewing the Washington factors, the only consideration favoring vicarious liability is that the misadventure took place during working hours.

Thus, notwithstanding that the postal mission initiated Silman's trip and the meter thereafter continued in her possession, she was not about her employer's business when the accident occurred. The distance and time required for the journey to a bank in another section of town, and in a direction away from both the law office and post office, clearly turned the later portion of the excursion into a purely personal matter entirely extraneous to the employer's interests. But for that private purpose, the extended travel would not have been made. Thus, the law office work became merely incidental once Silman abandoned her assigned task by driving past her place of employment to cash the check. Cf. Pearce v. U.S. Fidelity & Guaranty Co., 8 So.2d 743 (La.App.2d Cir.1942). In this instance, we are not confronted with a slight departure from a route normally traveled to complete work, but, instead, with an excursion entailing a distance three times farther than originally contemplated.[1]

Nor are we greatly impressed that the branch bank involved is the location where Silman usually made her employer's business deposits. It is undisputed that she had not been engaged in that activity when the accident occurred and, insofar as law office matters, had absolutely nothing to accomplish at the bank on the date in question. Thus, her employer received no benefit from the extended trek to the financial institution. See Keen, supra.

In sum, we find ample undisputed evidence in the present record that Silman's deviation from her employer's mission had not been reasonably incidental to her service as an employee and that it unreasonably increased the risk attributable to her original errand. Cf. Graffagnini v. George Engine Co., Inc., 45 So.2d 412 (La.App.Orl.1950). Thus, the trial court correctly found that Silman had not been in the course and scope of her employment and that her employer is not vicariously liable for plaintiffs' damages.

CONCLUSION

For these reasons, the summary judgment granted by the district court in favor of State Farm Fire & Casualty Insurance Company is affirmed. Costs of the appeal are assessed against plaintiffs.

AFFIRMED.

MARVIN, C.J., dissents for reasons assigned.

MARVIN, dissenting.

I respectfully dissent to the affirmance of the summary judgment effectively decreeing, as a matter of law, that Ms. Silman, the law office employee who deviated from her employer's mission, was not within the course of her employment when the accident occurred.

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Related

Timmons v. Silman
761 So. 2d 507 (Supreme Court of Louisiana, 2000)
Timmons v. Silman
743 So. 2d 866 (Louisiana Court of Appeal, 1999)
Alford v. STATE FARM AUTO. INS. CO.
734 So. 2d 1253 (Louisiana Court of Appeal, 1999)

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