Wearrien v. Viverette

803 So. 2d 297, 2001 WL 1540649
CourtLouisiana Court of Appeal
DecidedDecember 5, 2001
Docket35,446-CA
StatusPublished
Cited by13 cases

This text of 803 So. 2d 297 (Wearrien v. Viverette) 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
Wearrien v. Viverette, 803 So. 2d 297, 2001 WL 1540649 (La. Ct. App. 2001).

Opinion

803 So.2d 297 (2001)

Earl WEARRIEN, Plaintiff-Appellant,
v.
Victor VIVERETTE, et al., Defendant-Appellee.

No. 35,446-CA.

Court of Appeal of Louisiana, Second Circuit.

December 5, 2001.

*298 Donald R. Miller, Shreveport, Counsel for Appellant.

Wilkinson, Carmody & Gilliam, by Arthur R. Carmody, Jr., Shreveport, Lathrop & Gage, by John M. McFarland, Counsel for Appellee.

Before WILLIAMS, GASKINS and PEATROSS, JJ.

GASKINS, J.

The plaintiff, Earl Wearrien, filed suit against a co-worker, Victor Viverette, for personal injuries resulting from an altercation at work at the General Motors Corporation (GM) plant in Shreveport. The plaintiff also claimed that GM was vicariously liable for the tort committed upon him by Viverette. Both the plaintiff and GM filed motions for summary judgment. The trial court judgment rejected the plaintiff's motion and granted summary judgment in favor of GM. The plaintiff appealed. We affirm.

FACTS

On August 6, 1999, the plaintiff and Victor Viverette were working the evening shift at GM. They had a meal break from 8:30 p.m. to 9:00 p.m. The plaintiff left the plant and got a snack at a nearby convenience store. On his way back into the plant, he encountered Viverette and another individual in the parking lot. According to the plaintiff, the two had been smoking marijuana in Viverette's car. As the men walked into the plant, Viverette began insulting the plaintiff's wife, who was also a GM employee. Viverette said that she was having an affair with a supervisor in the plant, during work hours. The plaintiff instructed Viverette to stop talking about his wife. The comments continued as they entered the plant. The plaintiff went to a telephone near Viverette's work station and briefly called his wife, who was working at another location in the plant. As he walked away, the plaintiff again told Viverette not to talk about his wife. According to the plaintiff, Viverette followed him to his work station, struck him twice from behind in the head with a hammer and then pushed him into a welding machine. The plaintiff claimed that he sustained cuts to his head, neck, and arm as well as muscle and ligament injuries to his neck, upper back and chest.

On August 7, 2000, the plaintiff filed suit against Viverette and also named GM as a defendant. According to the plaintiff, GM is vicariously liable for Viverette's intentional tort. The plaintiff argued that the conduct was so closely related in time, place, and causation to employment duties that it created a risk of harm attributable to GM's business.

*299 On February 2, 2001, GM filed a motion for summary judgment, arguing that the battery occurred while the men were on a break. Because Viverette was not acting in the course and scope of his employment, GM argued that it was not vicariously liable for the intentional tort. Attached to GM's motion was the plaintiffs deposition.

On February 22, 2001, the plaintiff filed his opposition to the motion for summary judgment and also filed his own motion for summary judgment, claiming that GM was vicariously liable under the factors set forth in LeBrane v. Lewis, 292 So.2d 216 (La.1974). Attached to the plaintiffs motion was his affidavit outlining the events connected with the battery. The plaintiff also stated that he was concerned that Viverette's comments would affect his job and that of his wife. He also attested that he was required by his employment to be at the place where the battery occurred.

A hearing on the motions was held on March 12, 2001. GM argued that Viverette was not acting within the ambit of his assigned duties and was not acting in furtherance of his employer's objectives when he attacked the plaintiff. GM's attorney argued that it was not within the scope of employment for Viverette to come to the plant under the influence of marijuana and pick fights. The plaintiff's attorney argued that, because Viverette was saying that the plaintiff's wife was having an affair with a supervisor, the plaintiff was afraid that both he and his wife were in danger of losing their jobs. GM contended that it is not important what the victim thought at the time of the attack.

The trial court granted the motion for summary judgment in favor of GM and denied the motion filed by the plaintiff. The court concluded that there was no evidence to show that the plaintiff could meet his burden of showing that the battery occurred within the scope of employment. A judgment to that effect was signed by the trial court on April 24, 2001. The trial court designated the judgment as an appealable final judgment and the plaintiff filed an appeal, objecting to the denial of its motion for summary judgment and the granting of GM's motion.

SUMMARY JUDGMENT

The legal principles regarding summary judgment are well settled. A motion for summary judgment is properly granted only 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Eichelberger v. Sidney, 34,040 (La.App.2d Cir.11/3/00), 771 So.2d 863.

The burden is on the party seeking summary judgment to establish that there is an absence of factual support for one or more of the essential elements of the adverse party's claims. When a motion for summary judgment has been filed and supported by the evidence, the adverse party may no longer rely on the mere allegations or denials of his pleadings, but through affidavits or otherwise, must set forth evidence demonstrating that there is a genuine issue for trial. La. C.C.P. art. 967; Eichelberger v. Sidney, supra. If the non-moving party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden at trial, there is no genuine issue of material fact. La. C.C.P. art. 966.

We review summary judgments de novo under the same criteria that govern the district court's consideration of the appropriateness of summary judgment. Summary judgment procedure is now favored to secure the just, speedy and inexpensive determination of all except certain disallowed *300 actions. Eichelberger v. Sidney, supra.

VICARIOUS LIABILITY

Generally, an employee's exclusive remedy against his employer for on-the-job injury is workers' compensation. Henry v. Taco Tio, Inc., 606 So.2d 1376 (La. App. 2d Cir.1992). An exception is made for intentional torts. La. R.S. 23:1032 provides in pertinent part:

A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
. . . .
B.

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Cite This Page — Counsel Stack

Bluebook (online)
803 So. 2d 297, 2001 WL 1540649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wearrien-v-viverette-lactapp-2001.