Daniels v. Conn

• Court: Louisiana Supreme Court
• Writing for the Court: GULOTTA; DIXON; EDWARD A. de la HOUSSAYE; MARCUS; DIXON; EDWARD A. de la HOUSSAYE; MARCUS
• Citation: Daniels v. Conn, 382 So.2d 945 (La. 1980)
• Decision Date: 07 April 1980
• Docket Number: Nos. 66104,66416,s. 66104
• Parties: Fred DANIELS v. Halcott L. CONN et al. and State of Louisiana.

Page 945

382 So.2d 945

Fred DANIELS v. Halcott L. CONN et al. and State of Louisiana.

Nos. 66104, 66416.

Supreme Court of Louisiana.

April 7, 1980.

James J. Brady, Gravel, Roy & Burnes, Alexandria, for defendant-applicant in 66416 and for defendant-respondent in 66104.

Steven R. Giglio, Louisiana Dept. of Health and Human Resources, Baton Rouge, for defendant-applicant in 66104 and for defendant-respondent in No. 66416.

Kramer & Davis, James M. Buck, Antoon, Dalrymple & Beck, Joseph T. Dalrymple, Alexandria, for plaintiffs-respondents in both cases.

GULOTTA, Justice Ad Hoc.

Plaintiff, the father of a mentally retarded young man killed in a pedestrian-automobile accident while a resident at Pinecrest State School, was awarded a judgment against the State of Louisiana and also Halcott L. Conn, a Pinecrest employee and driver of the vehicle.¹ Based on a showing of Conn's inability to respond to the fullest extent of the $35,000 damage award, the trial judge held the State of Louisiana and Halcott L. Conn liable in solido for $6,000. He held the State solely liable for the remaining $29,000.

Concluding that the "inability of a defendant to pay" doctrine is inapplicable when a joint tortfeasor, liable in solido, is solvent, the court of appeal amended the trial court's judgment to hold the State of Louisiana and Halcott Conn liable in solido for the entire amount of the $35,000 award.

Both the State and Conn applied for writs to this Court and both applications were granted. The State complains that the trial judge and the court of appeal erred in concluding that the Pinecrest State School breached its duty of care to protect the resident, Roy Daniels. Recognizing the school's duty to promote patient safety, the State contends it provided reasonable care to properly and adequately supervise Daniels, consistent with his particular needs, and also with the approved open therapeutic treatment program followed at Pinecrest.

Defendant Conn contends the court of appeal erred in holding that the inability to pay rule is inapplicable where there is a solvent joint tortfeasor liable in solido with the insolvent tortfeasor. Conn argues the trial judge properly applied the rule in concluding that Conn could respond only to the extent of $6,000 of the $35,000 judgment.

We find no error by either the trial judge or the court of appeal in concluding that the State of Louisiana and Halcott Conn are joint tortfeasors. Moreover, we find the court of appeal correctly refused to apply the inability to pay rule under the circumstances in this case. Accordingly, we affirm the court of appeal judgment.

Roy Daniels had been a patient at the Pinecrest State School for approximately 12 years before the accident occurred. His chronological age was 28, but his mental age was seven and one-half years,² as determined by the trial judge and supported by the record. On November 12, 1977 he was killed when struck by a car driven by Halcott Conn. Conn, an electrician employed by the school, was returning to his employer-provided residence located on the school grounds. At the time of the accident, Roy was walking near the middle of one of the school's main two-way streets, pulling a small wagon containing phonograph records and recording equipment. As had been his usual duty over a period of more than ten years, Roy was transporting the records, which had been played at a school dance earlier that evening. He was taking the records from a recreation hall on the school grounds to the office where the records were kept.

According to Conn, on the Saturday night on which the accident occurred, he was returning to his home at approximately 8:15 p. m. He testified that he had left the grounds about 3 p. m. that day to go hunting. Returning from his outing, he had stopped on his way home at a bar, where he drank approximately five beers. The weather was clear, and there were no curves in the roadway approaching the accident site. It was dark, but the street was lighted with street lights.

Conn stated that he saw Roy approximately twelve feet in front of the automobile, but was unable to stop in time to avoid hitting him. Roy was walking in the direction of the oncoming automobile, near or in the middle of the street, pulling the wagon. Conn was traveling approximately 25 mph in the posted 15 mph area. According to the investigating Louisiana State Police officer, the intoximeter test and his own observations confirmed that Conn was intoxicated at the time of the accident. There were no skid marks at the scene.

LIABILITY OF HALCOTT CONN

Conn's liability is undisputed. The circumstances surrounding the accident clearly established Conn's liability for Roy Daniels' death. Furthermore, no serious contention is made before this Court that plaintiff's claim is barred by Roy's contributory negligence.

LIABILITY OF THE STATE OF LOUISIANA

A. RESPONDEAT SUPERIOR

In his "tentative" oral findings of fact, apparently dictated immediately after the matter was submitted, the trial judge concluded that no showing had been made to establish liability of the State based on respondeat superior. Although the court of appeal did not address the respondeat superior question, we feel compelled to do so. Conn was an employee of Pinecrest State School, which was under the supervision of Louisiana Department of Health and Human Resources, a state agency.

The question arises whether, at the time of the accident, while returning to his employer-furnished home on the school grounds after normal working hours, he was within the course and scope of his employment. The test to be applied was whether he was performing some function for his employer and for which he was employed. LSA-C.C. art. 2320; Orgeron v. Sweatman, 367 So.2d 1199 (La.App. 4th Cir. 1978), writ denied, Cheramie v. Sweatman, La., 371 So.2d 615. More specifically, the inquiry is 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 with conduct motivated by purely personal considerations entirely extraneous to the employer's interests." LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974).

The resolution of this issue, as we view it, depends to a large extent on whether Conn, employed as an electrician, was on duty after working hours at the time of the Saturday night accident, regardless of the fact that he was returning to his employer-furnished house located on the school grounds. In this connection Conn testified that he was paid a monthly salary, lived on the grounds, and was subject to 24-hour call if emergencies arose. Normal working hours for electricians were 7:30 a. m. to 4 p. m., Monday through Friday. Although there were other electricians employed by the school, only Conn and Donald Guadagnoli, the electrician foreman, lived on the school grounds in housing provided by Pinecrest. According to Conn, he was on call every Saturday and Sunday, except when arrangements were made for other people to be on call. He described "on call" as being available for emergency calls after 4 p. m. and being able to respond to an emergency within 30 minutes of the call. This required informing his wife or others where he could be located in the event he was not at home. He stated that on the night of the accident, he was on call and was returning home for that purpose.

According to Guadagnoli, however, he was on duty on the weekend of the accident, while Conn had the weekend off. Guadagnoli testified that another electrician had worked on Saturday from 7:30 to 4 p. m. and Guadagnoli's on-call duty for emergencies commenced at 4 p. m. The foreman stated that he had received and responded to two calls on that evening. He explained that the electricians who lived on the grounds are not necessarily on call on a 24-hour basis. The agreement among them was that each would work every third or fourth weekend. He further testified there were two or three other electricians in addition to Conn and himself. Conn disagreed with Guadagnoli's testimony that Conn had not been on duty on the fateful Saturday night.

Coates Stuckey, the school administrator, corroborated Guadagnoli's testimony. He stated that employees who lived on the grounds were not expected to be on call 24 hours a day, seven days a week, 365 days a year. According to Stuckey, usually the electrician foreman and the electrician living on the grounds reached an understanding that one or the other would be on call during off hours.

In the trial judge's "tentative findings", he accepted Guadagnoli's testimony regarding whether Conn was on call on the night of the accident. This finding obviously is based on a credibility determination. Considering Conn's activities on November 12th, together with Guadagnoli's testimony and its corroboration by Stuckey, we are led to conclude, as did the trial judge, that Conn was not "on duty" on the date of the accident. Having so concluded, we find no error in the trial court's rejection of liability against the State based on respondeat superior.

B. FAILURE TO PROVIDE SUPERVISION AND PROTECT DECEDENT

In Hunt v. Bogalusa Medical Center, 303 So.2d 745, 747 (La.1974), this Court, setting forth the care required to be exercised toward a patient, stated:

"A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient's condition may require. It is the hospital's duty to protect a patient from dangers that may result from the patient's physical and mental incapacities as well as from external circumstances peculiarly within the hospital's control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case."

We accept the State's argument that recent legislation amending the Louisiana Mental Health Law reflects "legislative...