Richard v. Hall

• Decision Date: 23 April 2004
• Docket Number: No. 2003-C-1488.,2003-C-1488.
• Citation: 874 So.2d 131
• Parties: Karen J. RICHARD, Individually and on Behalf of Her Minor Child, Emily Richard v. Michael A. HALL, Screening Systems International, Louisiana Division, Inc., Allstate Insurance Company and Empire Insurance Company.
• Court: Louisiana Supreme Court

874 So.2d 131

Karen J. RICHARD, Individually and on Behalf of Her Minor Child, Emily Richard v. Michael A. HALL, Screening Systems International, Louisiana Division, Inc., Allstate Insurance Company and Empire Insurance Company.

No. 2003-C-1488.

Supreme Court of Louisiana.

April 23, 2004.

Rehearing Denied June 25, 2004.

W. Arthur Abercrombie, Jr., John S. Tharp, Gerald L. Walter, Jr., Baton Rouge, Taylor, Porter, Brooks & Phillips, for Applicant.

Gary A. Bezet, Carol Galloway, Baton Rouge, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman; David I. Bordelon, Ungarino & Eckert; Donald R. Smith, Baton Rouge, Smith & Brumfeld, for Respondent.

KNOLL, Justice.

This is a wrongful death case that concerns a duck hunter who accidentally shot and killed another duck hunter. We are called upon to address two significant areas of tort law, namely, vicarious liability of an employer and the immunity afforded by Louisiana's Recreational Use Immunity Statutes.¹ Plaintiffs, the widow and child of the deceased, alleged the employer was vicariously liable and/or liable for its own negligence. The district court granted summary judgment in favor of the employer on both theories of tort liability. The majority of the court of appeal affirmed. We granted plaintiffs' application for a writ of certiorari to consider the correctness, vel non, of their decisions.

FACTS AND PROCEDURAL HISTORY

Screening Systems International, Inc., Louisiana Division (SSI)², a closely held corporation, entered into a duck hunting lease. SSI paid $10,000 to Loch Leven Plantation for hunting privileges that were to be utilized by three upper level management executives. The three executives authorized to enjoy SSI's duck hunting lease were Mr. Henry Watson, Jr., President, Mr. Michael Hall, Vice-President and General Manager, and Mr. George LeBlanc, Engineering Manager.

On January 2, 2000, Mr. Watson and Mr. Hall went to Loch Leven to hunt ducks. Also on that morning, John Richard was at Loch Leven to hunt as the guest of Todd Cavin; Mr. Cavin also held a duck lease at Loch Leven.³ According to the customary practice, numbers were randomly drawn to determine the order in which blinds would be chosen by those who had purchased hunting rights. Todd Cavin drew the number "1" which meant he had first selection of a blind to use that day. Mr. Cavin chose a blind that could accommodate two more people than he had in his party; the location consisted of two sunken blinds abutting each other. Mr Cavin asked Mr. Watson and Mr. Hall if they wanted to hunt with his party at the better blind. Mr. Watson and Mr. Hall accepted the invitation.

Mr. Watson, Mr. Hall and Mr. Richard occupied one of the blinds, with Mr. Richard seated in the middle. During the hunt, Mr. Hall accidentally and fatally shot Mr. Richard. Mr. Richard's widow, Karen Richard, subsequently filed suit against Michael Hall, SSI, Allstate Insurance Company (Hall's homeowner's insurance provider), and Empire Insurance Company (SSI's general liability insurer). Plaintiffs assert two bases for holding SSI liable: (1) vicarious liability for its employee's tortious conduct; and (2) direct liability for its failure to instruct authorized employees and their guests in the proper and safe use of firearms while hunting pursuant to SSI's duck lease.

Empire Insurance Company and SSI moved for summary judgment seeking to dismiss all of plaintiffs' claims. The district court signed a judgment on May 23, 2001, granting Empire's motion for summary judgment on the issue of vicarious liability. The court denied summary judgment on the negligence claim against SSI. Empire filed another motion for summary judgment in which it moved to dismiss plaintiffs' negligence claim against SSI, on the grounds that Louisiana's Recreational Use Immunity Statutes (RUS) afforded immunity to SSI. The district court granted the motion, holding the RUS barred plaintiffs' claim of negligence by SSI.⁴

Plaintiffs appealed the grant of summary judgments to the court of appeal. A majority of the appellate panel affirmed. Richard v. Hall, 02-0366 (La.App. 1 Cir. 2/14/03), 843 So.2d 433. The majority, relying upon our decision in Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990) (reh'g denied), held the trial judge did not err in granting summary judgment on the basis of the lack of vicarious liability on the part of SSI. The majority additionally found SSI was a lessee that qualified for the immunity afforded by the RUS, even though it was undisputed that Loch Leven was a recreational enterprise for profit. In dissent, Judge Pettigrew found duck hunting was a business activity of SSI thus precluding the application of the RUS. Judge Pettigrew found at a minimum there were material issues of fact in dispute as to whether it was a business activity and therefore summary judgment was improper. Additionally, he was of the opinion that the duck lease was not a lease at all, but a personal servitude of right of use, which would exclude the application of the RUS. We granted writs to address three issues: (1) whether plaintiffs had produced factual support sufficient to establish they would be able to satisfy their evidentiary burden of proof at trial that Mr. Hall's conduct was within the course and scope of his employment for purposes of vicarious liability; (2) whether SSI's "duck lease" was a lease or a personal servitude of right of use; and (3) whether the immunity afforded by the RUS applies where the owner⁵ claiming the immunity is not using the premises principally for a commercial recreational enterprise for profit. Richard v. Hall, 03-1488 (La.10/3/03), 855 So.2d 291.

DISCUSSION

Summary Judgment

We will first address the initial summary judgment dismissing plaintiffs' claim against SSI on grounds of vicarious liability. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136, p. 5 (La.11/28/01), 800 So.2d 783, 788. Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966(B); Goins, at p. 6, 800 So.2d at 788. The movants, here SSI and Empire, have the burden of proof. La.Code Civ. Pro. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, its burden on the motion does not require it to negate all essential elements of the adverse party's action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim. La.Code Civ. Pro. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. Pro. art. 966(C)(2). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is "material" for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Dickerson v. Piccadilly Restaurants, Inc., 99-2633, p. 3-4 (La.App. 1 Cir. 12/22/00), 785 So.2d 842, 844; Solomon v. Taylor Brokerage Services, Inc., 33,832, p. 4 (La.App. 2 Cir. 10/4/00), 768 So.2d 799, 801; Harvey v. Francis, XXXX-XXXX, p. 5 (La.App. 4 Cir. 3/21/01), 785 So.2d 893, 897.

Vicarious Liability

The premise of vicarious liability is codified in La. Civ.Code art. 2320, which provides an employer is liable for the tortious acts of its "servants and overseers in the exercise of the functions in which they are employed." Vicarious liability rests in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. Ermert, 559 So.2d at 476, citing Ira S. Bushey & Sons v. United States, 398 F.2d 167, 171 (2d Cir.1968)

; 2 M. Plainol & G. Ripert, Traité Élémentaire de Droit Civil No. 911 (La.St.L.Inst.Trans.1959); Douglas, Vicarious Liability and the Administration of Risk I, 38 Yale L.J. 584, 586 (1929). In determining whether a particular accident may be associated with the employer's business enterprise, the court must essentially decide whether the particular accident is a part of the more or less inevitable toll of a lawful enterprise. Ermert, 559 So.2d at 476,

citing 5 F. Harper, F. James & O. Gray, The Law of Torts, § 26.7, at 28 (2d ed.1986). When considering which risks the employer must bear under vicarious liability, the proper test bears resemblance to that which limits liability for workers' compensation, because the employer should be held to anticipate and allow for risks to the public that "arise out of and in the course of his employment of labor. Ermert, 559 So.2d at 476,

citations omitted. While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. Russell v. Noullet, 98-0816, p. 4 (La.12/1/98), 721 So.2d 868, 871(reh'g denied 1/15/99). The inquiry requires the trier of fact to determine whether the employee's tortious conduct was so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared to conduct motivated by purely personal considerations entirely extraneous to the employer's interests. Id.

In Ermert, we addressed the determination of the scope of executive employment in a negligence case. There the plaintiffs alleged vicarious liability on the part of the corporation for the negligent acts of its servant, who was founder, majority stockholder, president and chief executive officer of the closely held corporation. We noted that the word "servant" does not exclusively denote a person rendering manual labor; rather it includes anyone...