Richard v. Hall
| Decision Date | 14 February 2003 |
| Docket Number | No. 2002 CA 0366.,2002 CA 0366. |
| Citation | 843 So.2d 433 |
| 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 | Court of Appeal of Louisiana — District of US |
Appeal from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 474,953, Timothy E. Kelley, J Gerald L. Walter, Jr., W. Arthur Abercrombie, Jr., John Stewart Tharp, Baton Rouge, Counsel for Plaintiff/Appellant Karen J. Richard, Individually and on behalf of her minor child, Emily Richard.
Gary A. Bezet, Robert E. Dille, Gregory M. Anding, Carol L. Galloway, Baton Rouge, Counsel for Defendant/Appellee Screening Systems International, Inc., Louisiana Division.
David I. Bordelon, Metairie, Counsel for Defendant/Appellee Empire Insurance Company.
Donald R. Smith, Baton Rouge, Counsel for Defendants Michael A. Hall and Allstate Insurance Company.
Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
Karen J. Richard, individually and on behalf of her minor child, Emily Richard (Richard), appeals the trial court's grant of summary judgments in favor of Screening Systems International, Inc. (SSI). Following a review of the facts and the law, this court affirms.
SSI, a closely held corporation, entered into a duck hunting lease agreement. SSI paid the sum of $10,000.00 to Loch Leven Plantation for hunting privileges that were to be utilized by three upper level management executives of SSI. During one of the outings, Michael Hall, one of the authorized executives, accidentally, and fatally, shot another hunter, John Richard.1 The instant suit was subsequently filed by Richard against Michael Hall, SSI, Allstate Insurance Company (Hall's homeowner's insurance provider), and Empire Insurance Company (SSI's general liability insurer). Richard alleged: (1) negligence on the part of Mr. Hall; (2) vicarious liability against SSI pursuant to Mr. Hall's actions in the course and scope of his employment; and (3) in the use of firearms. Empire Insurance Company filed a motion for summary judgment with regard to the vicarious liability and negligence claims.
The trial court signed a judgment on May 23, 2001, granting Empire's motion for summary judgment on the basis of vicarious liability; however, it denied summary judgment on the independent negligence claim against SSI. Empire Insurance Company filed a second motion for summary judgment on the basis of the Recreational Use Immunity Statutes. The trial court granted summary judgment, holding that Richard's claim of negligence by SSI was barred by the Recreational Use Immunity Statutes. The action against SSI was dismissed.
Richard appeals the grant of the summary judgments, and asserts the following assignments of error:
(1) The trial court erred in holding that as a matter of law, SSI was not vicariously liable for the negligent actions of its employee, Michael Hall, in the shooting death of John Richard.
(2) The trial court erred in holding that SSI was a "lessee" of Loch Leven Plantation and, thus, entitled to immunity from its own negligent acts in the shooting death of John Richard pursuant to the Louisiana Recreational Use Immunity Statutes (La. R.S. 9:2791 and 9:2795).
(3) Alternatively, the trial court erred in its application of immunity under the Recreational Use Statutes, which do not permit immunity for any party when the property at issue is used as a commercial recreational development or facility.
The initial summary judgment in favor of Empire determined that SSI was not vicariously liable for the act of its employee, Michael Hall, at the hunting camp. A court's determination that conduct is within the course and scope of employment for purposes of vicarious liability is a factual finding subject to the manifest error rule. Baumeister v. Plunkett, 95-2270, p. 7 (La.5/21/96), 673 So.2d 994, 998. However, in ascertaining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial judge's consideration of whether a summary judgment is appropriate. Davis v. AMS Tube Corporation, 2000-1311, p. 4 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877.
Vicarious liability is premised on La. C.C. art. 2320, which provides: "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." Emoakemeh v. Southern University, 94-1194, p. 3 (La.App. 1 Cir. 4/7/95), 654 So.2d 474, 476. The vicarious liability of the master or employer is based on the foundation that a business enterprise cannot disclaim responsibility for accidents that could be considered characteristic of its activities. Ermert v. Hartford Insurance Company, 559 So.2d 467, 476 (La.1990). The burden of the court is to determine if the particular accident is a part of "the more or less inevitable toll of a lawful enterprise." Id. (quoting 5 F. Harper, F. James & O. Gray, The Law of Torts, § 26.7, at 28 (2d ed.1986)). Stated alternatively, if "the purpose of serving the master's business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service." Ermert, 559 So.2d at 477. Four variables to be considered when determining whether vicarious liability exists are whether the tortious act: (1) was primarily employment-rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during work hours; and (4) occurred on the employer's premises. Aycock v. Jenkins Tile Company, 96-2348, 96-2349, p. 5 (La.App. 1 Cir. 11/7/97), 703 So.2d 117, 121, writ denied, 97-3056 (La.2/13/98), 709 So.2d 753.
The facts in Ermert similarly involved an accidental shooting in a hunting camp. Decareaux, the president of, and a majority stockholder in, Nu-Arrow Fence Company, expended company funds on the hunting camp. The supreme court concluded that the trial court had not erred in determining that the Nu-Arrow employee was acting within the scope of his employment while he was at the camp. In its evaluation, the court emphasized that Decareaux, had "repeatedly and consistently used the hunting camp for business purposes[,]" specifically noting that he sold fences to almost every other member of the camp, and he had taken a number of his preferred customers and his employees to the camp for entertainment. The supreme court concluded that one of Decareaux's motives was to provide a place to entertain customers and employees of Nu-Arrow. Ermert, 559 So.2d at 478.
The arrangement at Loch Leven does not analogously sustain the proposition that the hunting facility was provided for the purpose of furthering SSI's business. The three executives to whom exclusive use of the hunting facility was granted never took clients or other employees to hunt with them. Henry Watson, Sr., who negotiated the agreement with Loch Leven Plantation, and Henry A. Watson, Jr., the president of SSI and one of the authorized executives, testified that the hunting privileges were "perks" for upper management. There is simply no evidence in the record to suggest that the activities at the hunting facility provided its users with anything greater than personal entertainment.
In oral reasons, the court stated that, although the lease was purchased by SSI and listed as a business expense on its tax return, the evidence indicated that Mr. Hall was not required to be there as part of his duties. Moreover, "he was not performing business related duties at the time." This court does not find that the trial court erred in its grant of summary judgment in favor of Empire Insurance Company on the basis of the lack of vicarious liability on the part of SSI.
Richard contests the status of SSI as a lessee of Loch Leven Plantation within the contemplation of La. R.S. 9:2791 and 9:2795 of the Recreational Use Immunity Statutes. Louisiana Revised Statute 9:2791A provides in pertinent part:
An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping.... If such an owner, lessee or occupant give[s] permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one [sic] to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
Thereafter, La. R.S. 9:2795A(2) defines "owner" as the "possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises."
A lease is defined in La. C.C. art. 2669 as a "synallagmatic contract, to which consent...
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Richard v. Hall
...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 ......