Scariano Bros., Inc. v. Hammond Const., Div. of Scheyd-Brennan, Inc.

• Decision Date: 04 March 1983
• Docket Number: SCHEYD-BRENNA,No. CA-0332,INC,CA-0332
• Citation: 428 So.2d 564
• Parties: SCARIANO BROTHERS, INC. v. HAMMOND CONSTRUCTION, DIVISION OFand Fidelity and Deposit Company of Maryland.
• Court: Court of Appeal of Louisiana — District of US

Page 564

428 So.2d 564

SCARIANO BROTHERS, INC. v. HAMMOND CONSTRUCTION, DIVISION OF SCHEYD-BRENNAN, INC. and Fidelity and Deposit Company of Maryland.

No. CA-0332.

Court of Appeal of Louisiana Fourth Circuit.

March 4, 1983.

Chaffe, McCall, Phillips, Toler & Sarpy, Peter A. Feringa, Jr., Joan G. Quinters, Bruce C. Butcher, New Orleans, for third party plaintiff-appellant.

Joseph W. Rausch, Stassi & Rausch, New Orleans, for third party defendants-appellees.

Before CIACCIO, BYRNES, and LOBRANO, JJ.

CIACCIO, Judge.

Defendant, Hammond Construction, Division of Scheyd-Brennan, Inc. (hereinafter called "Hammond") appeals from a judgment of the district court which upheld an exception of no cause of action filed by the third party defendant, James Gabler, Jr. We reverse that judgment and remand.

The sole issue presented on appeal is whether the general contractor's third party petition stated a separate cause of action against the corporate officer of the subcontractor.

The plaintiff, Scariano Bros. Inc., entered into a written building contract with the defendant, Hammond, for the construction of a wholesale meat processing plant. The specialized insulation work was subcontracted by Hammond to Gabler Insulation Inc., whose chief executive officer is James Gabler, Jr. The plaintiff sued the general contractor, Hammond, alleging certain defects in construction.

Hammond filed a reconventional demand and third party demand against the architects, supplier and two subcontractors. Gabler Insulation, Inc., a subcontractor, was made a third party defendant and its chief executive, James Gabler, Jr., and his insurer were sued individually. Mr. Gabler and his insurer filed a peremptory exception of no cause of action which was maintained by the trial court and James H. Gabler, Jr. and his insurer were dismissed as third party defendants with prejudice.

On appeal Hammond argues that Louisiana law provides a cause of action by a third party for injuries sustained as a result of the acts or omissions of an executive officer and that its third party petition, as amended, states such a cause of action against James H. Gabler, Jr.

The Louisiana Supreme Court, in Canter v. Koehring Co., recognized the plaintiff's right to sue a corporate officer individually provided the following criteria are met:

1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.

2. This duty is delegated by the principal or employer to the defendant.

3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances-whether such failure be due to misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.

4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm. 283 So.2d 716 at 721 (La., 1973).

This rule of law was concisely set forth in H.B. "Buster" Hughes, Inc. v. Bernard, wherein Justice Calogero, as organ for the Court stated:

The law is settled that if an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. Article 2315 Civil Code; Canter v. Koehring Company, La. 283 So.2d 716 (1973); 3 Fletcher Cyclopedia of the Law of Private Corporations, Section 1135; 19 Am.Jr.2d, Corporations, Section 1382." 318 So.2d 9 at 12 (La., 1975).

We are therefore satisfied that Louisiana law does provide a distinct cause of action by a third party for injuries sustained as the result of the acts or omissions of an executive officer. C.C. Arts. 2315-2316.

Accordingly, we must decide whether the defendant's third party petition, as amended, states such a cause of action.

A peremptory exception is...