When an accident occurs at someone’s place of work, the injured party can hold the employer responsible in certain circumstances, under the legal concept of vicarious liability. This doctrine provided relief for Kenneth and Pamela Porter in a recent Fifth Circuit Court of Appeals case arising out of Avondale, Louisiana.
In Porter v. Fulkerson, the accident occurred at the office of a Navy project that was staffed by personnel from a variety of entities, including subcontractor John J. McMullen Associates (“JJM”). The workspace, with an open air layout with low cubicles, was designed to foster camaraderie and ease of communication, creating a very social environment.
One day, JJM employee Philip Fulkerson was on his way into the office, heading to his desk, when he saw an acquaintance sitting with Navy employee Kenneth Porter in Porter’s cubicle. Fulkerson stopped by to chat, perching on the edge of Porter’s desk. At one point while Porter was speaking, Fulkerson went to pat Porter in what the court described as the style of Tony Soprano. But Fulkerson slipped off the desk, causing him to accidentally slap Porter hard in the face.
Porter was so badly injured from the accident that he was found to be permanently disabled. He suffered from TMJ issues, an aggravated degenerative cervical disc disease that causes debilitating headaches, an inner ear concussion that causes vertigo, and a heightened psychological response to injury.
Porter and his wife sued Fulkerson and JJM. Fulkerson settled with the Porters, but the case against JJM went to trial. The jury found JJM liable for Fulkerson’s actions and awarded the Porters $1.9 million in damages. JJM appealed, and the case went to the Fifth Circuit.
Article 2320 of the Louisiana Civil Code provides that, under Louisiana law, when an employee commits a tortious act while working within the scope and during the course the employer has assigned, then the employer will also be liable for damages.
The court noted that for actions taken while working to be considered within the course of the job the employee must be working both where and when prescribed by the employer. And scope, or whether the actions were within the limits the employer controlled, is determined according to the following test:
For the employer to be held liable for the tortious conduct of the employee that conduct must be in furtherance of the duties assigned and subject to some control by the employer, as compared with conduct that the employee takes on purely personal initiative that is unrelated to the duties owed to the employer. However, the employee’s conduct need only be reasonably incidental to the performance of the employee’s official duties, and need not be exclusively employment rooted.
In Porter’s case, the workspace itself was designed to facilitate social interaction. Physical contact was not discouraged – in fact, friendly handshaking and back-patting were quite frequent. Because Fulkerson was in Porter’s cubicle to socialize, an activity JJM specifically intended to encourage, Fulkerson’s actions served JJM’s purpose and satisfied its goals.
For this reason, the jury was not manifestly erroneous in finding that Fulkerson was acting when, where, and how the employer JJM wanted him to when he injured Porter and that JJM was therefore responsible for the damage Fulkerson caused. Because the Fifth Circuit could not reverse the jury’s finding unless there was manifest error, the court affirmed the jury’s verdict.