Felps v. Landmark Event Staffing Servs., Inc.
| Decision Date | 31 August 2022 |
| Docket Number | NUMBER 2021 CA 1370 |
| Parties | Marion FELPS v. LANDMARK EVENT STAFFING SERVICES, INC., Redwood Fire and Casualty Company and John H. Williams |
| Court | Court of Appeal of Louisiana — District of US |
Brandon Brown, Jeffrey N. Rabb, James H. Peltier, Jr., Baton Rouge, LA, and Marcus J. Plaisance and Mark D. Plaisance, Prairieville, LA, Counsel for Plaintiff/Appellant, Marion Felps
Samuel M. Rosamond, III, Jonathan B. Womack, Francis C. Cannone, New Orleans, LA, Counsel for Defendant/Appellee, Redwood Fire & Casualty Insurance Company
Jill R. Menard, Foster P. Nash, New Orleans, LA, and C. Michael Pfister, Guyton H. Valdin, Jr., Metairie, LA, Counsel for Defendant/Appellee, Landmark Event Staffing Services, Inc.
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Plaintiff, Marion Felps, appeals from a trial court judgment granting summary judgment in favor of Landmark Event Staffing Services, Inc. (Landmark) and Redwood Fire & Casualty Insurance Company (Redwood) and dismissing his claims against them with prejudice. For the reasons that follow, we reverse and remand.
On January 21, 2017, Felps was employed as a security supervisor for Landmark, a company that provides event staff and security at Louisiana State University (LSU) Events. On that particular date, Felps was working as a supervisor at an indoor track and field event taking place at the Maddox Field House (Field House) on LSU's campus. John Williams, who was also employed by Landmark, was working as a security employee at the track and field event and was being supervised at that event by Felps. Williams and a female Landmark employee were assigned to a table where they were responsible for checking in athletes. At some point during the track meet, the female Landmark employee informed Felps that Williams needed to speak with him. Thereafter, Williams also told Felps that he needed to speak with him. When Felps told Williams that he could speak with him, Williams directed Felps out a side door to the building, claiming it was too loud inside the Field House. Once outside, Williams told Felps he was "being disrespected" and demanded that Felps "make [him] a supervisor." Felps refused, informing Williams that Williams needed to speak with Landmark because it is the one who approves and decides who will be made a supervisor. Williams thereafter demanded that Felps pay him the difference in the money and that Felps could collect the money from Landmark the next day. Felps refused. After informing Williams that he was not going to get supervisor pay and that Felps was not going to pay him any money, Felps attempted to return inside. However, before he could go, Williams hit Felps on the side of the head and took off running.
Thereafter, Felps filed a petition for damages naming Williams, Landmark, and Redwood, Landmark's insurer, as defendants. Felps alleged he and Williams were employees of Landmark and that while having a discussion regarding employment related concerns, Williams struck Felps resulting in brain injury
. Felps alleged that Landmark was vicariously liable for the battery committed by its employee, Williams.
Landmark answered the petition raising several affirmative defenses. Additionally, Landmark filed a motion for summary judgment, asserting that the alleged altercation took place outside the scope of Williams's employment with Landmark and therefore, Landmark cannot be vicariously liable for Williams's actions. Particularly, Landmark asserted that the battery was not employment rooted, reasonably incidental to Williams's duties, or in the ambit of Williams's assigned duties. Landmark attached excerpts of Felps's deposition as well as excerpts of the deposition of Michael Gentilli, Landmark's Vice President of development and operations.
Redwood also filed a motion for summary judgment. Redwood asserted that Felps had filed suit against Redwood as the alleged insurer of Landmark. Redwood further alleged that because it had been sued pursuant to the Direct Action Statute, La. R.S. 22:1269, as the alleged liability insurer of Landmark, the direct action statute permits a right of action against a liability insurer only if the plaintiff possesses a substantive cause of action against the insured. Therefore, Redwood asserted, for the reasons set forth by Landmark in asserting that it is entitled to dismissal of Felps's claims against it, Redwood is likewise entitled to dismissal of any claims filed against Redwood. Redwood adopted Landmark's memorandum in support of its motion for summary judgment and exhibits attached thereto.
Following a hearing on the motions for summary judgment, the trial court found that the tortious act was not primarily employment rooted and that Williams was not acting in the scope his employment. As such, the trial court found that Landmark was not vicariously liable. The trial court signed a judgment on June 26, 2021, granting the motions for summary judgment filed by Landmark and Redwood and dismissing Felps's claims against them with prejudice. Felps now appeals from the trial court's judgment.
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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(A)(3). An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, pp. 26-27 (La. 7/5/94), 639 So. 2d 730, 750-751.
The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover can meet its burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden.
Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if he will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1) ; Jenkins v. Hernandez, 19-0874, p. 4 (La. App. 1st Cir. 6/3/20), 305 So. 3d 365, 371, writ denied, 20-00835 (La. 10/20/20), 303 So. 3d 315 ; Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764 So. 2d 37, 39. The moving party must only point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1) ; Celotex Corp. v. Catrett, 477 U.S. 317, 332, 106 S. Ct. 2548, 2557, 91 L.Ed. 2d 265 (1986) ; Mercadel v. State Through Department of Public Safety and Corrections, 18-0415 (La. App. 1st Cir. 5/15/19), 2019 WL 2234404 *5-6 (unpublished). The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1) ; see also La. C.C.P. art. 966, comments-2015, comment (j). If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, Article 966(D)(1) mandates the granting of the motion for summary judgment. Jenkins, 19-0874 at p. 5, 305 So. 3d at 371 ; Babin, 00-0078 at p. 4, 764 So. 2d at 40. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Succession of Hickman v. State through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 16-1069, p. 5 (La. App. 1st Cir. 4/12/17), 217 So. 3d 1240, 1244.
An employer is liable for the torts committed by his employee if, at the time, the employee was acting within the course and scope of his employment. Baumeister v. Plunkett, 95-2270, p. 3 (La. 5/21/96), 673 So. 2d 994, 996. The two terms are not synonymous. The course of employment test refers to the time and place. The scope of employment test examines the employment-related risk of injury. Benoit v. Capitol Manufacturing Company, 617 So. 2d 477, 479 (La. 1993).
In order for an employer to be vicariously liable for the tortious acts of its employees, the employee's tortious conduct must be so closely connected in time, place, and causation to his employment duties as to be regarded as 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 interest. Richard v. Hall, 03-1488, p. 6 (La. 4/23/04), 874 So. 2d 131, 138 ; Ellender v. Neff Rental Inc., 06-2005, p. 5 (La. App. 1st Cir. 6/15/07), 965 So. 2d 898, 901.
In an analysis of vicarious liability for an employee's tortious acts, the court must consider more than simply whether the employee was in the course and scope of employment at the time of the incident. An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objective. Baumeister, 95-2270 at pp. 3-4, 673 So. 2d at 996 ; Honor v. Tangipahoa Parish School Board, 13-0298, p. 7 (La. App. 1st Cir. 11/1/13), ...
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