Court of Appeals Examines the Scope of Employment Requirement for Vicarious Liability

In a recent Louisiana Court of Appeals decision, Janika Johnson appealed a verdict in favor of Gilley Enterprises, owner of a Monroe McDonalds. Johnson, as a customer at the McDonald’s in 2006, was involved in an altercation with an employee. There was a history of ill feeling between Johnson and the employee because Johnson was dating the father of the employee’s child. Johnson called the other woman over to the counter, and a conversation ensued which turned loud and heated. The employee reached over the counter and struck Johnson in the face. Other store employees intervened. Johnson was told to leave and started towards the door. The other woman picked up a cup, dipped it into an open vat of hot grease, and threw the hot grease on Johnson, who suffered serious burns on her face and body.

Johnson filed suit against Littleton (the employee) and Gilley Enterprises, contending that Gilley was liable because their managers were negligent in hiring, training, and supervising Littleton and that Littleton’s attack occurred in the course and scope of her employment, making Gilley vicariously liable. Gilley responded that all of Johnson’s causes of action had prescribed. The trial court granted Gilley’s exception for the negligence claim but denied it pertaining to vicarious liability. Gilley filed a motion for summary judgment to dismiss the remaining vicarious liability claims arguing that Littleton was acting outside the course and scope of employment, the trial court agreed and Johnson appealed. On appeal Johnson argued that the trial court erred in concluding La.C.C. art 3493.10 was inapplicable to her claims of negligent hiring, training and supervision.

Louisiana C.C. art 3493.10 states:

…Actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950 are subject to a liberative prescription of two y ears…from the day injury or damage is sustained.

The Court of Appeals disagreed with Johnson that 3493.10 applied here. There are two different tortious acts that are at issue. First, the assault and battery and Gilley’s vicarious liability for its employees actions. Second, Gilley’s negligent hiring, training, and supervision of Littleton. The second claims are separate and stand on their own. The Supreme Court has found that individual actions of joint tortfeasors should be considered for the application of the two year prescriptive period and not the entire action. The trial court correctly sustained Gilley’s exception of prescription with respect to the claims of negligent hiring, training, and supervision.

As for the vicarious liability claim, the Court of Appeals agreed with the trial court that Littleton was not within the scope of her employment at the time of the attack.

Vicarious Liability
An employer can be liable for their acts and the acts of their employees as long as the employee’s action are within the course and scope of the injuring employee’s employment. Course means time and place. To determine scope is more complex. The employment-related risk of injury should be examined and if the tortious conducts is “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..” the employer is vicariously liable. More specifically, the Louisiana Supreme Court has provided four things to consider in finding vicarious liability (not all must be found):

1. The tortious act was primarily employment rooted.
2. The violence was reasonably incidental to the performance
of the employee’s duties.
3. The act occurred on the employer’s premises.
4. The act occurred during the hours of employment.

Finding that the scope of employment aspect of vicarious liability has been satisfied depends on the motive of the employee and whether their purpose served the employer’s business.

In this case the question was whether Littleton’s motive was to serve Gilley’s business in any way. Littleton and Johnson had a violent history and Littleton appeared to be the aggressor. In the attack, appeared to be motivated by her anger towards Johnson and not by service to Gilley. The Court of Appeals agreed with the trial court that Littleton’s attack was motivated by purely personal considerations. The conversation leading up to the attack was purely personal. Littleton did not wait on Johnson that night. Johnson had to request that Littleton come to the front counter. Littleton’s personal attack in no way furthered the business at the restaurant. Johnson failed to show that any genuine issue of material fact existed as to whether Littleton’s act was primarily employment rooted or incidental to her job duties. As such, even though the attack occurred on work premises during work hours, it was not in the scope of employment and thus there was no vicarious liability.

If you have been injured as a result of an employee’s actions or as a result of unsafe conditions in a business, consult with an attorney today. Doing so can help get the process started on a claim against the business for any harms caused.