New Orleans Shooting Leads to Wrongful Death Action

Under Louisiana law, a defendant has no specific duty to protect a person against the harmful acts of a third party unless the defendant has a “special relationship” with the victim or some independent accountability for the third party. The concept of respondeat superior refers to the legal construct that an employer is responsible for the actions of its employee, so long as the actions occur in the course and scope of employment. This legal principle can be extremely valuable to plaintiffs who are unable to recover much if anything from an individual employee who commits harm; the vicarious liability of the employer can allow a plaintiff to recover from a presumably deeper-pocketed employer, as well.

Establishing vicarious liability can prove tricky, however: liability does not attach when the “employees” is an independent contractor. Under Louisiana law, “determining whether [an employer-employee] relationship exists, the major consideration is the control or right of control which one party exercises over the other.” See Savoie v. Fireman Fund Ins. Co. Thus, the court “may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other.”

Blanchard v. Ogima. In the recent case of Irving v. Rubens, for example, the plaintiffs attempted to establish an employer-employee relationship to reach an additional defendant. In 2008, Ray Manning engaged Richard Rubens to repair flood damage to his house on Prieur Street in New Orleans. Rubens was working on several other houses in the area at the time, and so he hired Robert Irwin as a foreman to oversee his several construction crews. Over the weekend of June 28, an altercation between Rubens and Irwin occurred at Manning’s residence. Ultimately, Rubens shot and killed Irwin.

Irwin’s family filed a wrongful death action against Manning alleging that he was Rubens’s employer and therefore vicariously liable for the harmful acts of Rubens while in the course and scope of his employment. The Fourth Circuit, in reviewing the trial court’s granting of Manning’s motion for summary judgment, found “no evidence of any special relationship between Ray Manning and Robert Irving that would impose a duty upon Manning to protect Irving from being shot and killed by Rubens in Manning’s home.” There was, in the court’s view, “no evidence indicating that Manning could be found vicariously liable as Rubens’ employer for Rubens’ killing of Irving.” The plaintiffs failed to offer sufficient evidence to show that Rubens was an employee, rather than an independent contractor. In fact, the evidence showed that Rubens “was overseeing construction jobs for other homeowners at the same time he was doing Manning’s house,” and that “Rubens selected, hired and directed his own crew.”

These facts did not support the conclusion that “Manning had the right to control the time or activities of Rubens.” Moreover, the court noted, the plaintiffs certainly did not prove that “the shooting of Irving was within the course and scope of Rubens’s employment,” which would have required a showing that Rubens was “acting within the ambit of his assigned duties and also in furtherance of [Manning’s] objectives.”

If you have been injured by someone’s negligence, contact the Berniard Law Firm today at 1-866-574-8005 and speak with a lawyer who can help you obtain the recovery you deserve.