Young v. Mooney

• Decision Date: 01 May 2002
• Docket Number: No. 2001-1592.,2001-1592.
• Citation: Young v. Mooney, 815 So.2d 1107 (La. App. 2002)
• Parties: Annie Conner YOUNG and Joseph Young v. Anthony C. MOONEY, et al.
• Court: Court of Appeal of Louisiana — District of US

815 So.2d 1107

Annie Conner YOUNG and Joseph Young v.Anthony C. MOONEY, et al.

No. 2001-1592.

Court of Appeal of Louisiana, Third Circuit.

May 1, 2002.

Jack Caskey, Lake Charles, Counsel for Appellant/Plaintiffs: Anne Conner Young and Joseph Young.

Thomas W Sanders, a Professional Law Corporation, Lake Charles, Counsel for Appellee/Defendants: Lower Cameron Hospital Service d/b/a South Cameron Memorial Hospital and Lower Cameron Ambulance Service District of the Parish of Cameron.

Sidney W. Degan, III., H. Edward Blanchard, Degan, Blanchard & Nash, New Orleans, Counsel for Appellee/DefendantEmpire Indemnity Insurance Company.

Frank Walker, Jr., Plauche, Smith and Nieset, Lake Charles, Counsel for Appellees/DefendantsAnthony C. Mooney and Louisiana Farm Bureau Mutual Insurance Company.

Adam Ortego, Louisiana Department of Justice, Attorney General, Division of Risk Litigation, Lake Charles, Counsel for Appellee/Defendant State of Louisiana, Office of the Governor, Division of Administration, Office of Risk Management.

Glen W. Alexander, Office of District Attorney, Cameron Parish, Cameron, Counsel for Appellee/Defendant Lower Cameron Hospital Service d/b/a South Cameron Memorial Hospital and Lower Cameron Ambulance Service District of the Parish of Cameron.

Court composed of HENRY L. YELVERTON, SYLVIA R. COOKS, and MARC T. AMY, Judges.

COOKS, J.

This is a course and scope of employment case, in which an injured motorist and her husband, Annie Young and Joseph Young(Plaintiffs) brought an action at the trial court to recover personal injury damages from Anthony C. Mooney, Mooney's auto insurer, Louisiana Farm Bureau Mutual Insurance Company, Mooney's alleged employers-Lower Cameron Hospital Service District(LCHSD) and Lower Cameron Ambulance Service District(LCASD)and the employers' insurer, Empire Indemnity Insurance Company(collectively Defendants), for injuries caused when Mooney collided into Mrs. Young's vehicle.

Prior to a trial on the merits, Defendants moved for summary judgment contending Mooney was not engaged in his employment with LCHSD.They asserted, at the time of the accident, he substantially deviated from the course and scope of his employment.The trial court granted summary judgment in favor of Defendants and issued a final judgment dismissing Plaintiffs' action.For the following reasons, we affirm the trial court's grant of summary judgment and final judgment.

FACTS

Prior to the accident, Mooney worked as an emergency medical technician (EMT) for LCHSD.He was employed as a paramedic and ambulance driver on February 1, 1994.During the month of August, 1998, he was instructed by LCHSD to attend an EMT instructor's seminar beginning on Sunday, August 23, 1998 and ending on Thursday, August 27, 1998, in Roberts, Louisiana¹.Mooney drove his own car to the seminar.The objective of the seminar was to train and certify him to teach other EMTs.Mooney's deposition reveals the conference ended at 8:00 p.m. that Thursday and that he intended to drive home to Cameron, Louisiana where he resides.

Mooney left the seminar in Roberts heading home sometime after 8:00 o'clock that evening.Prior to reaching his destination, Mooney testified he followed his friend Tiffany, a registered nurse who also attended the seminar, to her apartment in Baton Rouge.He remained at Tiffany's apartment for approximately thirty minutes.While at Tiffany's apartment, he called his friend Thomas Widcamp in Westlake, Louisiana and arranged to meet him at a Travel Lodge Motel on the north side of Lake Charles, Louisiana.Prior to reaching his destination at the motel, Mooney stopped off at a convenience store in Lake Charles and purchased a six pack of beer and a twenty-four ounce can of beer.Mooney arrived at the motel around midnight, and then he and his friend Widcamp sat around Widcamp's motel room drinking beer.He stated he had about two beers over the course of forty-five minutes.They remained in the motel room until about 1:30 a.m., when he and Widcamp decided to go to Cowboy's, a bar in Lake Charles, until Widcamp's girlfriend got off' from work at another location.They had a few beers at Cowboy's and remained there until approximately 3:00 a.m., when Widcamp received a page from his girlfriend indicating she was ready to be picked up.From Cowboy's, the two traveled to Sulphur, Louisiana, ten to fifteen miles west of Lake Charles, to Widcamp's girlfriend's mother's house.From there, the three returned to the motel room in Lake Charles, arriving at about 4:00 a.m.According to Mooney, he then laid down and watched television.At some point, he"dosed off a little bit," and then left Widcamp and his girlfriend at the motel at about 5:30 a.m. to return to his home in Cameron.He recalled traveling east on La. Hwy. 14 to Manchester Road where he stopped because he was falling asleep.He stated he got out of his vehicle and walked around the car a couple of times, apparently to wake himself up, and then got back in the car to continue home.Somewhere in the course of returning home, Mooney fell asleep...La the wheel, crossed the center lane on La. Hwy. 14, and collided head first into Mrs. Young's vehicle.She suffered serious bodily injuries.The record reveals the accident occurred at about 6:30 a.m. that morning.Trooper Sal Messina's police report indicates he administered several field sobriety test to Mooney because he detected an odor of alcohol coming from Mooney's breath.The report states Trooper Messina was convinced, from the field sobriety test he administered, that Mooney was impaired.He read Mooney his rights and placed him under arrest.About one and a half hours after the accident, Mooney was given a Breathalyzer Test which indicated he had a blood alcohol content (BAC) of .111g %.

There is no dispute Mooney caused the accident when his vehicle crossed the center lane and careened into Mrs. Young's vehicle.There is no dispute he was drinking prior to the accident and that he had a blood alcohol content of .111g.% at 7:45 a.m, shortly after the accident.The sole question which gives rise to this appeal centers on whether Mooney's employers are vicariously liable for the injuries he caused after he left the seminar and had "a night out with friends".The trial judge granted summary judgment in favor of the employers and their insurers finding no genuine issue of material fact remained and as a matter of law defendants were not legally liable because, at the time of the mishap, Mooney was not engaged in the scope and course of his employment.For the reasons which follow, we agree.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo under the same criteria that governs the trial judge's consideration of whether a summary judgment is appropriate.Palm-Air Civic Ass'n, Inc. v. Syncor Intern., 97-1485 (La.App. 4 Cir.3/4/98);709 So.2d 258.A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law.La.Code Civ.P. art. 966(B).The summary judgment procedure is favored and should be construed to accomplish the just, speedy, and inexpensive determination of actions.La.Code Civ.P. art. 966(A)(2).

The initial burden of proof is on the mover to show no genuine issue of material fact exists.La.Code Civ.P. art. 966(C)(2).Once the mover has made a prima facie showing no genuine issue of material fact exists, the motion should be granted.Id.However, if the non-movant bears the burden of proof at trial on the issue before the court, the burden shifts to him or her to present evidence demonstrating material factual issues still remain.La.Code Civ.P. art. 966(C)(2);Hayes v. Autin, 96-287(La.App. 3 Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41;J. Ray McDermott, Inc. v. Morrison, 96-2337(La. App. 1 Cir.11/7/97), 705 So.2d 195, writs denied.97-3055, 97-3062 (La.2/13/98), 709 So.2d 754.

When a motion for summary judgment is supported, an adverse party may not rest on the mere allegations or denials in his pleading.His response, by affidavits or as otherwise provided by law, must set forth specific facts showing there is still a genuine issue of material fact for trial.La.Code Civ.P. art. 967;Palm-Air Civic Inc.,709 So.2d 258.

LAW AND ANALYSIS

Plaintiffs contend the trial court erred in granting summary judgment in favor of Defendants and dismissing their action for damages.They assert the issue of whether Mooney substantially deviated from the course and scope of his employment with LCHSD is strictly a question of fact and should have been decided by a jury,

Every course and scope of employment case must be judged under its own set of facts.Vaughan v. Hair, 94-86 (La.App. 3 Cir.10/5/94);645 So.2d 1177, writ. denied. 95-0123 (La.3/10/95);650 So.2d 1186.This court has stated in determining whether an employee is engaged in the course and scope of his employment, at the time of an accident, we must first decide whether his activities were "`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.'"Id. at 1180.

The general rule is that an employee traveling to and from work who has an accident is not engaged in the course and scope of employment "to such an extent as to render his employer liable to third persons for the employee's negligent acts."Id;Phipps v. BrunoConst., 00-0480(La.App. 3 Cir. 11/14/00);773 So.2d 826;Bell v. Hurtstell, 99-1333 (La.App. 4 Cir.6/16/99);743 So.2d 720;Hughes v. Gearhart Indus., Inc.,552 So.2d 717(La. App. 1 Cir.1989), writ denied,556...