Orgeron on Behalf of Orgeron v. McDonald

• Citation: 639 So.2d 224
• Parties: 93-1353 La
• Decision Date: 05 July 1994
• Court: Supreme Court of Louisiana

Page 224

639 So.2d 224

93-1353 La. 7/5/94

Ragan ORGERON, Individually and on Behalf of Her Minor Child, Jordan Robert Orgeron v. Joseph McDONALD, et al.

No. 93-C-1353.

Supreme Court of Louisiana.

July 5, 1994.

J. Thomas Anderson, Mark W. Smith, Robein, Urann & Lurye, Metairie, L.G. LaPlante, Jr., LaPlante & Martin, Cutoff, for applicant.

Edwin C. Laizer, Joel L. Borrello, E. Gregg Barrios, Adams & Reese, Vincent W. Farrington, Jr., Cornelius, Sartin & Murphy, New Orleans, for respondents.

[93-1353 La. 1] LEMMON, Justice. ^*

This tort action arises out of a two-vehicle accident which caused the death of plaintiffs' husband and father, Peter Orgeron. Joseph McDonald, an employee of Energy Catering Services (ECS) who was the driver of the second vehicle, was solely at fault in causing the accident. The issue presented is whether McDonald was within the course and scope of his employment with ECS at the time of the accident when he was driving his own vehicle at his expense to the dock where he and ECS's catering crew were to be picked up by ECS's customer and transported to an offshore facility. We conclude that McDonald, under the circumstances of this case where he was intercepted by his employer on his trip home after a fourteen-day shift offshore and ordered to report to a specific dock only a matter of hours from the time of the order, was within the course and [93-1353 La. 2] scope of his employment at the time of the accident. We therefore hold that ECS is vicariously liable for the damages sustained by the plaintiffs.

ECS was in the business of supplying workers and equipment for catering services to various oil exploration companies at their offshore facilities along the Gulf Coast. In accordance with ECS's contract with its customers, ECS dispatched workers to perform services at places designated by the customers, and the workers were transported to the work location by the customer from ports designated by the customer. ECS paid its employees an hourly wage out of the daily fee it received from its customer.

McDonald, a resident of Mobile, Alabama, had been employed by ECS for five months as a night cook on offshore facilities. His usual schedule was to work offshore for fourteen days and then to have seven days off before beginning another fourteen-day shift frequently on a different offshore platform. ¹ When dispatched by ECS on a job, McDonald used his own vehicle to travel from his home in Mobile to the various ports where he was picked up by ECS's customer. ECS did not provide McDonald with a travel allowance, nor did it reimburse him for travel expenses.

On December 23, 1993, the day before the accident, McDonald returned to port from a fourteen-day shift offshore, having worked from 6:00 p.m. on December 22 to 6:00 a.m. on December 23. He drove to ECS's Houma office to obtain his pay check, planning to continue on to Alabama that night to spend Christmas with his family.

In Houma, ECS's general manager instructed McDonald that he was needed for a seven-day shift, beginning at 4:00 a.m. the next morning, and was to report to the Fourchon dock, approximately sixty miles from Houma. [93-1353 La. 3] According to McDonald, ECS made arrangements for him to sleep at a motel in Houma, although ECS did not pay the cost of the room. The accident occurred in the early morning hours of December 24, while McDonald was on his way from Houma to the Fourchon dock.

Plaintiffs filed the instant wrongful death action, seeking to hold ECS vicariously liable for McDonald's tort. The trial court rendered judgment in favor of the plaintiffs, finding that McDonald was within the course and scope of his employment at the time of the accident. Reasoning that the factual situation in this case was almost identical to Jackson v. Long, 289 So.2d 205 (La.App. 4th Cir.1974), and noting that "[w]hen a business sends its employees to the four winds for a job it increases the risk to the public," the court held that the employer should bear the risk of torts committed by the employee during travel. ²

The court of appeal reversed. 618 So.2d 1041. Noting that Jackson was a workers' compensation action, the court of appeal concluded that the trial court in this tort action should have applied a strict interpretation of legal principles regarding an employer's vicarious liability for its employee. 618 So.2d at 1044. Comparing the facts of this case to those in Smith v. Lewis, 499 So.2d 1350 (La.App. 5th Cir.1986), cert. denied, 503 So.2d 476 (La.1987), the court of appeal held that plaintiffs did not bear their burden of proving any peculiar circumstances which would take this case out of the general rule that an employee's traveling from home to work and from work to home is not within the course and scope of employment. 618 So.2d at 1043-1045.

We granted certiorari to review the court of appeal's decision. 623 So.2d [93-1353 La. 4] 1288.

McDonald was clearly an employee of ECS, who exercised control over his work and determined the details thereof, paying him an hourly wage for performance. The critical inquiry is whether McDonald's activity at the time of the accident was within the course and scope of that employment with ECS so as to make ECS vicariously liable.

An employer is answerable for the damage occasioned by his servant in the exercise of the functions in which the servant is employed. La.Civ.Code art. 2320. In the application of Article 2320, an employer's vicarious liability for conduct not his own extends only to the employee's tortious conduct which is within the course and scope of employment. Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70 (5th ed. 1984). Whether an employee is within the course and scope of his employment is a question that is only answerable by general rules, because of the unending contexts in which the question may arise. Generally speaking, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. W. Page Keeton et al., supra.

An employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business. LeBrane v. Lewis, 292 So.2d 216 (La.1974). In determining whether the employee's conduct is employment-rooted, the court assesses several factors, including the payment of wages by the employer, the employer's power of control, the employee's duty to perform the particular act, [93-1353 La. 5] the time place and purpose of the act in relation to service of the employer, the relationship between the employee's act and the employer's business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act. Reed v. House of Decor, Inc., 468 So.2d 1159 (La.1985).

The present case involves the application of the principle that an employee who is traveling from home to work or returning from work to home is generally not within the course and scope of his employment. Because an employee usually does not begin work until he reaches his employer's premises, his going to and coming from work is generally considered outside the course of his employment unless he has a duty to perform en route. Moreover, an employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of...