Employer NOT Vicariously Liable for Employee Actions

Suppose you have a scenario where an employee injures a patron under circumstances  in which:

1. the employee's shift had ended and she had clocked out.

2. the employee's boyfriend came to pick her up, but he gets into a fight with a patron

3. heated words are exchanged and then, without sufficient provocation, the much larger patron slaps the smart-aleck boyfriend  in the face knocking him to the ground.

4. the employee, who had clocked out and her shift was over, involved herself briefly in the fracas only to try to protect her much smaller boyfriend from a beating at the hands of the much larger, much more aggressive patron.

5. It should be noted that the employee was 4' 9" and weighed 115 pounds at the time of the incident.

Was this employee in the course and scope of employment ?

DETERMINATION OF COURSE AND SCOPE

In 2005, an employee of the Walmart in Bossier City was involved in a car crash in the parking lot of the store. The employee had just clocked out and was leaving to go home.  The trial court awarded a significant amount of damages and determined that even though the employee had clocked out ‘‘there is a reasonable period while an employee remains on the employer’s premises which is regarded as within the course and scope of employment.’’

The Appellate Court acknowledged that an employer is liable for a tort committed by its employee if, at the time, the employee was acting within the course and scope of her employment. The Court explained, however, that there is a "course and scope employment test" which is applicable to determining whether employer is liable for tort committed by its employee. The test refers to time and place, and scope of employment and refers to the employment-related risk of injury.

 

For the employer to be vicariously liable for an employee’s conduct, the employee’s tortious conduct must be 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 instituted by purely personal considerations entirely extraneous to the employer’s interest.

In the instant matter, it cannot be argued that rescuing her boyfriend from a beating in the parking lot is related to the employee's duties. She was off the clock and on a purely personal mission. The employer cannot be liable for her actions. Fortunately, even IF the employer had been on the clock, if her actions were purely personal, the employer would NOT be vicariously liable.

Merry Christmas 2011

From all of us at firm, we wish you ALL a very Merry Christmas!

Front:

Chris Baker, Mark Perkins

Back Row:

Susie Master, Kelli McNaughton, Amanda Conant, Tiffany Peters-Lewis, Tara Hoffman, Rosalyn Hall

Surge of 18-wheeler Accidents in Northwest Louisiana

As you know, most of my practice is devoted to representing trucking companies involved in accidents. Although most accidents happen in South Louisiana along Interstate 10 between Houston, Texas and Mississippi, there are still a number of accidents occurring in North Louisiana along the I-20 corridor on the northern part of the state and along I-49 which runs north-south on the west side of the state.

In the last few two weeks, the following incidents have occurred just in parishes of Caddo, Bossier and Webster parishes:

Accident A:

A woman is seriously injured following a wreck late Wednesday (December 14, 2011) night on I-220 in Bossier city, and the driver of the car police originally were told she was driving has been cited.

The crash happened at about 11 p.m. Wednesday night on I-220 at Benton Road involving a car and an 18-wheeler as they were both traveling westbound. An investigation indicates the car, a 2000 Ford Taurus, cut in front of the 18-wheeler and made contact with the rig's front bumper. That caused the car to spin and strike the inside guardrail of the Benton Road overpass. A passenger in the Taurus, 27-year old Victoria Gillins of Shreveport, was ejected from the car and sustained what appeared to be life threatening injuries. Her 3-year year old son, Loyal Gillins, was also injured as was the driver, 29-year old Jim Ware of Shreveport.

All three occupants of the car were taken to LSU Hospital by Bossier City Fire Department personnel. None were wearing safety restraints.

The driver of the 18-wheeler was not injured. Ware initially told police that Victoria Gillins was driving the car at the time of the crash but later confessed that he was actually behind the wheel.

Accident B:

The eastbound on ramp to I-20 from I-220 is closed due to a single vehicle rollover crash involving an 18 wheeler with a full load of apples.

Eastbound traffic on I-220 is now being temporarily detoured onto Highway 80 to accommodate the wrecker crews while they work to upright and haul off the 18-wheeler.

According to Bossier City Public Information Officer Mark Natale, the driver lost control of his rig as he was traveling on the ramp resulting in his load shifting, causing the rig to rollover onto its side.

The driver was shaken up but not injured. A heavy duty wrecker has been dispatched to the scene to upright the rig and haul it away.

The load of apples did not spill as a result of the crash.

Accident C:

I-20 westbound in Webster Parish will be closed for the next few hours as crews clean up an accident involving an 18-wheeler.

The wreck happened about 7:00 a.m. Monday morning (December 11, 2011). Louisiana State Police say the truck driver somehow lost control of the semi, flipping it over onto its side. The truck spilled its load of rubber products, which crews are working to clean up. At the moment, I-20 at the Dixie Inn exit (exit 44) is closed. Drivers are being diverted at the Dixie Inn exit to Highway 80.

Accident D:

Two Halliburton 18 wheelers collided on Tuesday, November 29, 2011 in a chain-reaction semi truck accident in Bossier City, LA.

Accidents E and F:

Over the weekend of December 10, 2011, Two separate 18-wheeler accidents on Interstate 20 over the weekend claimed two lives. One of the victims was a four-month-old infant.

The crash on Sunday happened about three o'clock on Interstate 20 eastbound in Bossier Parish just past the I-220 exchange. That accident killed a female driver and sent her passenger to LSU Hospital with critical injuries. Sgt. Joseph Mondello with the Louisiana State Police said, "The tractor-trailer driver did not see the traffic stop and ran into the rear of a Ford Taurus and the driver was killed on the scene."

"It's a really tragic day here on I-20. it's supposed to be a festive time of year, but this is anything but." That was the response from Shreveport Police Spokeswoman Kacee Hargrave said about the first accident on Saturday. In that crash, a Lincoln had slowed down on the interstate in the westbound lane near the Hearne Avenue Exit because of construction. An 18-wheeler driven by Milton Dawkins hit the back of the Lincoln, killing the four-month-old baby boy and putting his mother, 26-year-old Claudia Salley to LSU. She remains in critical condition as of Sunday night.

How to Avoid Being Involved in an 18-wheeler accident:

Unfortunately, many people assume that big-rigs can maneuver as quickly and as easily as a passenger vehicle. That is simply not true and you must give the rigs room to maneuver.

A Complicated, Egg-Head, Politically Incorrect Argument to Apply Mexican Law to Derivative Claims Arising from Accident In the United States

The derivative loss of consortium claims arose  from an occurrence that took place in Louisiana when Florencio, Evangelio, Samuel, and Alfredo  were involved in a motor vehicle accident on Interstate 49 when their 1996 Dodge 1500 pick-up truck rear-ended a 1996 International tractor-trailer driven by John.

At all pertinent times, John  was an agent acting within the scope of his authority with D.T., L.L.C.

Florencio, Evangelio, Samuel, and Alfredo were in America illegally. Alfredo died as a result of the accident. Should Alfredo's family, who had never been to the United States, benefit from the state laws of consortium?

The Louisiana Supreme Court defined the elements of damage for a wrongful death action in Hill v. Shelter Mutual Insurance Company. The Supreme Court stated, "The elements of damage for a wrongful death action are loss of love, affection, companionship, services, support, medical expenses and funeral expenses. Additionally, the courts have allowed damages in wrongful death actions for mental pain, suffering, and distress resulting from the death of the victim."

The laws of Mexico would allow the five wrongful death beneficiaries and the thirteen personal injury beneficiaries in this case more limited recovery.

Mexican law expert,  Roberto Calvo Ponton,  asserts that, under Mexican law, the Plaintiffs would have a strict liability claim which allows recovery of compensatory damages up to certain amounts ("caps") fixed in Mexican Federal Labor Law.

Pursuant to Article 1773 of the [Michoacan] Civil Code the remedy in strict liability cases, as well as other causes of action, shall consist in the re-instatement of the situation prior to such damage, and when that is impossible, it shall consist in the payment of damages. Pursuant to Article 32 of the Criminal Code of Michoacan, when the damage is caused to the individuals and produces the death or the total or partial disability, temporary of permanent, the amount of the indemnity shall be fixed applying the provisions and the tariffs established in the Federal Labor Law [of the Republic of Mexico].

Applicable provisions of the Mexican Federal Labor Laws that state the caps on damages for the derivative claims of the Plaintiffs. In addition to these "material damages", the laws of the State of Michoacan and Mexico allow for recovery of "moral damages".

Pursuant to Article 1774 of the Civil Code for Michoacan, the Court may grant in favor of the victim an indemnity for moral damages, which in no event it may be greater than one third of the indemnity for material damages. It must be noted that a Court may only grant a compensation for moral damages when there has been an illicit conduct, which not necessarily occurs in the strict liability cases.

The United States Court of Appeals for the Fifth Circuit discussed damages for derivative claims under Mexican law in Ramirez v. Autobuses Blancos Flecha Roja, S.A. De C.V.

The Court of Appeals stated, "The law of Mexico does not allow damages for pain and suffering or physical injury in the common tort suit but rather provides compensation for lost wages calculated through a formula based on the injured party’s former wages and the Mexican federal labor wage standards.

Damages known as ‘moral reparations’ are also available." "Moral reparations" under Mexican law are "designed to compensate for humiliation, injury to reputation, and mental anguish".

The substantially different recoveries allowed for derivative claims in tort under the law of Louisiana and the law of Michoacan, Mexico present a conflict-of- laws issue regarding damages. The Court must resolve this conflict according to the rules set forth in Book IV, Title VII of the Louisiana Civil Code. These rules direct the Court to apply the damages law of the State of Michoacan, Mexico to determine the Plaintiffs’ recovery for their derivative claims in tort.

The United States Fifth Circuit Court of Appeal has also used issue-by-issue choice-of-law analysis to apply, in a single case, the law of one state to the merits a wrongful death claim and the law of another state to issues concerning damages. For example, in Transco Leasing Corporation v. United States of America, the U.S. Fifth Circuit Court of Appeals held that the law of Texas, the place of the alleged negligent conduct and injury, applied to the merits of a wrongful death action instituted under the Federal Torts Claims Act in a Texas court , and the law of Louisiana, the domicile of the decedent and his beneficiaries, applied to issues of damages in the case.

The merits of the Plaintiffs’ derivative claims should be governed by the law of Louisiana. However, the Court must engage in a separate and different choice of law analysis to determine whether Louisiana or Mexican law governs the damages to be awarded to the derivative claimants in this case should they prove the merits of their claims. The applicable choice-of-law analysis pertains to issues of loss distribution and financial protection and, as is discussed extensively below, directs the Court to apply the law of damages of Mexico to the Plaintiffs’ derivative claims.

In this tort case, the Court must choose a rule of decision from two differing laws regulating damages. Laws regulating damages pertain to issues of loss distribution and financial protection. Loss distribution and financial protection rules "prohibit, assign, or limit liability after the tort occurs."

Louisiana Civil Code Article 3544 specifies the law that should generally be applied in cases involving conflicts of loss distribution laws. Louisiana Civil Code Article 3544 states:

Issues pertaining to loss distribution and financial protection are governed, as between a person injured by an offense or quasi-offense and the person who caused the injury, by the law designated in the following order:

(1) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in the same state, by the law of that state. Persons domiciled in states whose law on the particular issue is substantially identical shall be treated as if domiciled in the same state.

(2) If, at the time of the injury, the injured person and the person who caused the injury were domiciled in different states: (a) when both the injury and the conduct that caused it occurred in one of those states, by the law of that state; and (b) when the injury and the conduct that caused it occurred in different states, by the law of the state in which the injury occurred, provided that (i) the injured person was domiciled in that state, (ii) the person who caused the injury should have foreseen its occurrence in that state, and (iii) the law of that state provided for a higher standard of financial protection for the injured person than did the law of the state in which the injurious conduct occurred.

Such rules focus less on territorial factors such as the place of conduct and more on the parties’ contacts with the involved states, particularly the domicile of the parties.

Importantly, in this case, the Plaintiffs asserting derivative claims were domiciled in the Michoacan, Mexico at the time of, and since, the accident. They had never set foot in the United States. Defendant John, the alleged tortfeasor and driver of the 18-wheeler tractor-trailer that collided with the truck occupied by the Plaintiffs asserting direct personal injury claims, was domiciled in Louisiana at the time of the accident and continues to be a Louisiana domiciliary. Consequently, paragraph (2) of Article 3544 applies since the Plaintiffs asserting derivative claims and Matthew were domiciled in different states at the time of the accident.

Laws regulating damages express a state’s policies concerning the distribution of loss resulting from tortious acts and what financial protection or limits on liability should be afforded. Domicile is the primary factor in issues relating to loss distribution and financial protection.

In this case, the Plaintiffs asserting derivative claims were domiciled in Michaocan, Mexico and have no connection to Louisiana. The alleged tortfeasor, Mr. Matthew, and his employer, DT, are Louisiana domiciliaries. Thus, no legitimate interest or policy of the state of Louisiana would be served by the application of its unlimited damages rule.

Moreover, application of its law in this case would impair Louisiana’s interest in protecting Louisiana tortfeasors from unfair and burdensome damage awards. In contrast, Mexico has a interest in applying its law of damages to the derivative claims in this case because the claimants are Michaocan domiciliaries and should be afforded the protections of Mexican law. This was the holding of the United States Fifth Circuit Court of Appeal in Vasquez v. Bridgestone/Firestone, Inc.

Louisiana has no legitimate interest in applying its law on damages so as to provide the plaintiffs with a higher recovery than that allowed by the law of the plaintiffs’ domicile.

In Transco Leasing Corporation, the U.S. Fifth Circuit Court of Appeals held that the law of the plaintiff’s domicile, rather than the law of the state of conduct and injury, applied to determine the proper amount of nonpecuniary damages awarded to the plaintiff in a wrongful death action.

In Transco Leasing, the plaintiff was a Louisiana citizen who filed a Federal Torts Claim Act wrongful death suit in a Texas federal court for the death of her husband and daughter (both Louisiana citizens) in a collision of two private planes over Texas. The district court held that Louisiana law should be applied to the issue of damages suffered by the plaintiff. The plaintiff urged the Court of Appeals to reevaluate the amount of the damages awarded to her under Louisiana law in light of the higher nonpecuniary damage awards affirmed under Texas law for similar losses. The Court of Appeals rejected the plaintiff’s argument that Texas law should govern the issue of damages since Louisiana’s interest in ensuring the adequate compensation for its citizens would be satisfied if the higher standard of protection afforded by Texas law were applied. The Court of Appeals stated, "Texas, however, has no interest in the amount of wrongful death damages awarded to Louisiana residents."

Article 1773 of the Michoacan Civil Code which provides the remedy available to tort victims expresses this same policy. It says that such remedy "shall consist in the re-instatement of the situation prior to such damage, and when that is impossible, it shall consist in the payment of damages."

While the recoveries allowed under the damages law of Louisiana and Michoacan, Mexico are different, the policies on which they are based are the same. Therefore, Louisiana’s policies are not impaired by the application of Michoacan’s law on damages.

A state’s law on damages is designed to protect its citizens. That is, the purpose of a state’s law on damages is twofold:

First, through its law regulating damages, a state seeks to ensure that its citizens who are injured by the tort of another are adequately compensated and do not become public charges.

Second, a state’s law on damages seek to ensure that its citizens who commit torts are protected either from liability altogether (e.g. workers’ compensation immunity for employers) or from excessive or burdensome damage awards.

Like this case, the issue in Vasquez was whether the law of Mexico or Texas should govern damages in a suit filed in Texas state court by Mexican plaintiffs against American citizens for the wrongful death of Mexican citizens. The decedents died in an automobile accident in Mexico. In Vasquez, the U.S. Fifth Circuit Court of Appeal held that Mexican law, not Texas law, should govern issues of damages. The court stated, "We are mindful of the disparate levels of wrongful death damages provided under Texas and Mexican law and the incentive for plaintiffs to sue in the United States. Given that all decedents and plaintiffs are Mexican, however, there is little justification for applying Texas law, which seeks to protect the rights of its citizens to adequate compensation."

In this present case, the plaintiffs asserting direct personal injury claims were present in the U.S. illegally at the time of the motor vehicle collision from which their claims, and those of the plaintiffs asserting derivative claims, arise. Also, the direct claimants were unauthorized to work in the U.S. Thus, the direct claimants were directly contravening explicit congressional policies and committing criminal fraud at the time of the accident. The United States has a direct interest in not contravening its own immigration policies. Applying Louisiana law in this case, rather than the required Mexican law and awarding damages based at least in part on illegal workers’ future wages in the United States which could only be obtained by criminal fraud, would not only "trivialize federal immigration laws."

Safer Roads Despite Increased Traffic

 

Photo Credit: Kansas City Star

The following is a Guest Post by Garrick Infanger, Armstrong Forensic Engineers *

As always, we hope this information is helpful
to our clients. We welcome your input.

Mark Perkins

Over the past six decades the number of miles of paved roads in America has grown tremendously, but the number of traffic fatalities has actually fallen in the same span. Highway fatality rates were at record lows in 2009 according to federal transportation commission, reaching the lowest point since 1949 at 1.1 fatalities per 100 million vehicle miles driven.

Improved safety in both roadways and cars are cited as the leading reasons for the decline in deaths. Examples include rumble strips and guard cables on highways and the presence of anti-lock brakes and multiple air bags in most new cars.

American commerce depends heavily on the roadway system, specifically the Interstate Highway System, and the thousands of semi-trucks and commercial trucks moving goods.  The news of these safety improvements will only encourage continued growth in commercial trucking and transportation.

One rising area for concern is ‘distracted driving’ that includes texting or using smart phones while driving. Some reports suggest that 20% or more of drivers are engaged in distracted driving. Impaired driving continues to be an area of concern as a high number of accidents related to drug and alcohol abuse.

The roads definitely safer—now if we can just tackle rush hour traffic.

 
–

* Garrick Infanger writes for the Forensic Engineering Hub, an engineering-focused blog sponsored by Armstrong Forensic Engineers.

Highway Fatalities Fall to Record Low; Truck-Related Deaths Rise

U.S. highway deaths fell to the lowest level in 2010 since 1949, but truck-related fatalities rose for the first time since 2005, the Department of Transportation said Thursday.

Fatalities involving large trucks increased rose 8.7%, DOT’s National Highway Traffic Safety Administration said in its annual report.

NHTSA said that 3,675 people died in truck-related accidents in 2010, an increase of 295 over the 2009 figure of 3,380, ending a three-year decline in fatalities in truck-involved accidents. American Trucking Associations said that in the 10-year period from 1999 to 2009, the number of large trucks involved in fatal crashes dropped by 35%, while injury crashes dropped by 48%. At the same time, the number of registered big rigs rose by more than 3 million, or 41%, ATA said in a statement, and ATA President Bill Graves cautioned that policymakers should not jump to conclusions about the fatality figures.

“Every fatality on our highways is a tragedy, and the uptick in the 2010 preliminary report concerns up deeply,” Graves said in a statement. “Without more information and analysis, though, it is difficult to draw conclusions about what this preliminary data means.”

Overall, fatalities in both trucks and automobiles declined to their lowest number — 32,885 — since 1949, when 30,246 people died, DOT said.That led to the lowest fatality rate ever recorded, with 1.10 deaths per 100 million vehicle miles traveled, down from 1.15 deaths per 100 million vehicle miles traveled in 2009.

By Transport Topics

Staff Reporter Eric Miller contributed to this story.

Effect of Summary Judgment Dismissal on Comparative Fault

As you may know, Louisiana is a "pure comparative" jurisdiction, meaning that even an immune NON-PARTY can be assessed fault, reducing the percentage of fault of 

other defendants.

However, what happens if there is summary judgment and one of the parties (or even a non-party) is deemed NOT at fault?

This post is to clarify some concerns regarding Act 690 of 2010, which amended Article 966 of the Code of Civil Procedure dealing with summary judgment and the application of comparative fault. The courts have not yet addressed this amendment and there was some discussion of whether the amendment could prevail if in conflict with the substantive comparative fault statute La. C.C. art. 2323; however, a close reading of the amendment demonstrates that there is likely no conflict.

The important portion of the amendment adds the following language to La. Civ. P. art. 966:

(F) When the court determines in accordance with the provisions of this Article, that a party or non party is not negligent, not at fault, or did not cause, whether in whole or in part, the injury or harm alleged, that party or non party may not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or non party nor shall the issue be submitted to the jury. This Paragraph shall not apply when a summary judgment is granted solely on the basis of the successful assertion of an affirmative defense in accordance with Article 1005.

As the amendment states, it is not the fact that a party is dismissed on summary judgment, but the reason that the summary judgment is granted, which removes them from consideration in the allocation of fault.

Could He See In The Dark? (or Conspicuity Issues)

A few weeks ago, I discussed a case in which night visibility evidence was addressed and the testimony of an expert was excluded. The following is follow up to that post, giving you some ideas on issues to cover to lay a foundation for Daubert challenge.

The trial court is charged with a"gatekeeping responsibility" to ensure that all expert testimony is "not only relevant, but reliable." The factors to be considered by the trial court in determining whether the reasoning or methodology underlying an expert’s testimony is scientifically valid and can be applied properly to the facts at issue include: 

1. The "testibility" of the expert’s theory or technique;

2. . Whether the theory or technique has been subjected to peer review and publication;
The known or potential rate of error; and

3. Whether the methodology is generally accepted in the scientific community.

"Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment--often of great consequence--about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes."

If an expert has never performed any night visibility study, how can he make a determination as to what drivers should or should not have seen? There is no way to test the reliability of his methodology for reaching his conclusions, because he did not employ any such methodology. Accordingly, the "methodology" does not meet the reliability standards set forth in Daubert and Foret. Therefore, it is impossible to determine whether his opinions and conclusions were formed in a scientifically credible manner or are nothing more than speculation and conjecture unsupported by reliable scientific evidence.

The following are just a few foundational questions that may be useful in evaluating if night visibility photography can pass muster in a Daubert challenge.