Washington v. Reed

624 So. 2d 465, 1993 WL 366779
Louisiana Court of Appeal·Decided September 22, 1993·No. 25102-CA·Published·Cited by 8 cases

Opinion

624 So.2d 465 (1993)

Georgia Mae L. WASHINGTON, Plaintiff-Appellant,
v.
Nathaniel REED, Defendant-Appellee.

No. 25102-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1993.

*466 Edward Dixon, Shreveport, for plaintiff-appellant.

Mayer, Smith & Roberts by Caldwell Roberts, Jr., and Kimberly Purdy, Shreveport, for defendant-appellee.

Before NORRIS, HIGHTOWER and WILLIAMS, JJ.

NORRIS, Judge.

Georgia Washington brought a wrongful death action against defendants, Nathaniel Reed and First United Methodist Church of Shreveport, Reed's employer, alleging that First Methodist was vicariously liable for Reed's tortious act of killing Ms. Washington's son, Anthony Dwayne Lee. The district court granted First Methodist's motion for summary judgment finding that Reed did not act within the course and scope of his employment and First Methodist did not owe a duty to protect decedent, Lee, from this particular risk of harm. Ms. Washington appeals from that judgment. Upon a careful review of the facts and applicable law, we affirm.

FACTUAL BACKGROUND

Nathaniel Reed was employed by First United Methodist Church of Shreveport as a custodian and groundskeeper. His duties involved yard work and, during the winter season, assisting with seating arrangements and layouts for church activities.

Reed worked five days a week from 8:00 a.m. until 5:00 p.m., some Saturdays, and every other Sunday. On Saturday, October 17, 1987, the date of the accident, Reed was not on duty and did not receive pay for that day. He had worked Monday through Friday and was scheduled to work half a day on Sunday. On Saturday morning, Reed went to wash a friend's car and then went to his mother-in-law's home. When he learned from his mother-in-law that his daughter needed to be picked up, he and his three year old son drove to First Methodist where she was taking ballet lessons.

His daughter was not waiting outside when he arrived so Reed entered the church to retrieve a spool of weed eater line, which he had purchased earlier, but had forgotten to bring home from work on Friday. As Reed exited the Hunter building on Sprague Street, he noticed four teenage boys, among them 14 year old Nathaniel Lee, wrestling and cursing on the steps of Bain Hall, the gymnasium, located across Sprague Street. He also noticed a young lady, presumably being dropped off to attend a pageant in Bain Hall, who appeared afraid to get out of the car because of the boys' behavior.

Reed crossed the street and told the boys to leave. He explained to them that items were found missing, presumably stolen, from the church and if questioned by the police, he would have to tell them about the boys being in the area. An argument ensued and one of the boys, later determined to be Lee, threatened Reed with bodily harm. Reed struck Lee and then summoned for the security guard.

First Methodist hired Southern Research to provide security guards and a supervisor for Southern Research, Victor Rogers, was on patrol that day. Rogers approached the group and Reed asked him to arrest the boys. Rogers refused but did ask the boys to leave the premises. However, before the *467 boys could leave, a fight began. One of the boys removed his belt with a large buckle and handed it to Lee and Reed pulled a small knife from his own belt, although the deposition testimony and Rogers's incident report conflict as to who initiated the fight. Rogers defused the situation and told Lee to go home. Lee stated that they would get Reed when he drove home. Rogers told Reed not to drive past Douglas Street on the way home because it was the direction in which the boys had walked.

Reed ignored the warning, however, and drove west down Sprague Street. Reed saw the boys as he drove past an alley. The boys allegedly threw rocks and bottles which struck the passenger side of Reed's vehicle. Reed reached for his own revolver located between the arm rests and fired it into the air out of the passenger window, allegedly intending to scare the boys; however, the bullet struck and killed Lee.

Georgia Washington's claim against First Methodist asserted it was vicariously liable for Reed's acts because at all times Reed was acting for the benefit of his employer. Washington now contends that Reed felt he had a duty to remove unauthorized persons from church grounds; he had done so in the past and First Methodist could have foreseen such action. She further asserts that genuine issues of material fact exist regarding whether Reed was on duty that day; whether Reed was responsible, at least in part, for security; and finally, the exact location in which the shooting occurred. Therefore, she argues that summary judgment should not have been granted.

First Methodist argues that Reed was not on duty that day; the shooting did not occur on church grounds; he was never authorized to carry a gun; and security was not part of Reed's employment duties. Thus, he was not acting on behalf of First Methodist; no genuine issues of material fact exist and summary judgment is proper.

APPLICABLE LAW

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. La.C.C.P. art. 966. The burden of proof is great and is on the mover. Reese v. Tayco Food Store Inc., 602 So.2d 260 (La. App. 2d Cir.1992).

Summary judgment should be used cautiously and any reasonable doubt as to a material issue of fact should be resolved against granting the motion and in favor of a trial on the merits. Only when reasonable minds must inevitably concur will summary judgment be appropriate. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Yocum v. City of Minden, 566 So.2d 1082 (La.App. 2d Cir.1990).

On a motion for summary judgment, the court first determines whether supporting documents are sufficient to resolve all material factual issues. If insufficient, summary judgment will be denied. If the documents are sufficient, the burden shifts to the opposing party to prove that material facts exist, either by affidavit or otherwise, but the opposing party may no longer rest on the pleadings alone. Sanders v. Hercules Sheet Metal Inc., 385 So.2d 772 (La.1980); Reese v. Tayco Food Store Inc., supra.

A fact is "material" if it potentially assures or precludes recovery, affects litigants' ultimate success or determines the outcome of a legal dispute. Sanders v. City of Blanchard, 438 So.2d 714 (La.App. 2d Cir.1983).

Vicarious liability arises from La.C.C. art. 2320 which states:

"Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed."

In addition, the Louisiana Supreme Court has set forth four factors to determine whether an employee's act falls within the "course and scope of employment." Some or all of the following must be present: the act (1) was primarily employment rooted; (2) reasonably incidental to the performance of employment duties; (3) occurred during work hours; and (4) on the employer's premises. LeBrane v. Lewis, 292 So.2d 216 (La. *468 1974). It is not necessary that all factors be met. There are no magical requirements and each case must be decided on its own merits. Turner v. State, 494 So.2d 1292 (La. App. 2d Cir.1986).

Free access — add to your briefcase to read the full text and ask questions with AI

Washington v. Reed, 624 So. 2d 465, 1993 WL 366779 (La. Ct. App. 1993).

624 So. 2d 465 (Washington v. Reed) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Carroll v. State Farm Fire & Cas. Co.
732 So. 2d 1263 (Louisiana Court of Appeal, 1999)
Brasseaux v. Town of Mamou
713 So. 2d 742 (Louisiana Court of Appeal, 1998)
Maze v. Grogan
694 So. 2d 1168 (Louisiana Court of Appeal, 1997)
Cupit v. United States
964 F. Supp. 1104 (W.D. Louisiana, 1997)
Timmons v. Silman
675 So. 2d 287 (Louisiana Court of Appeal, 1996)
Jackson v. Ferrand
658 So. 2d 691 (Louisiana Court of Appeal, 1994)
Luccia v. Cummings
646 So. 2d 1142 (Louisiana Court of Appeal, 1994)