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Eichelberger v. Sidney11/3/2000
n the salon. Ms. Eichelberger asserts that her deposition testimony clearly reveals that National is liable for the intentional tort of Ms. Sidney. Again, we disagree.
An employer can be vicariously liable both for its own intentional acts and the intentional acts of its employees. Jones v. Thomas, 426 So. 2d 609 (La. 1983). The employer's liability, however, extends only to those acts which are within the course and scope of the injuring employee's employment. La. C.C. art. 2320; Baumeister v. Plunkett, 95- 2270 (La. 5/21/96), 673 So. 2d 994; LeBrane v. Lewis, 292 So. 2d 216 (La. 1974); Miller v. Keating, 349 So. 2d 265 (La. 1977); Lamkin v. Brooks, 498 So. 2d 1068 (La. 1986).
Our supreme court has held that, in order for an employer to be vicariously liable for the tortious acts of its employee, the "tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded 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." LeBrane, supra. An employer is not vicariously liable for the intentional acts committed by its employee unless such employee is acting within the ambit of his or her assigned duties and also in furtherance of his or her employer's objectives. Scott v. Commercial Union Insurance Company, 415 So. 2d 327 (La. App. 2d Cir. 1982).
In LeBrane, supra, the supreme court considered the following factors in holding an employer liable for a supervisor's actions of stabbing his co-employee:
(1) whether the tortious act was primarily employment rooted;
(2) whether the act was reasonably incidental to the performance of the employee's duties;
(3) whether the act occurred on the employer's premises; and
(4) whether it occurred during the hours of employment.
It is not necessary that all four factors be met in order to find liability. Miller v. Keating, supra. By the same token, an employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Barto v. Franchise Enterprises, Inc., 588 So. 2d 1353 (La. App. 2d Cir. 1991), writ denied, 591 So. 2d 708 (La. 1992); Tampke v. Findley Adhesives, Inc., 489 So. 2d 299 (La. App. 4th Cir. 1986), writ denied, 491 So. 2d 24 (La. 1986); McClain v. Holmes, 460 So. 2d 681 (La. App. 1st Cir. 1984), writ denied, 463 So. 2d 1321 (La. 1985); Scott v. Commercial Union Insurance Company, supra. The particular facts of each case must be examined to determine whether an employee's act is within the scope of his employment. Barto, supra; Scott v. Commercial Union Insurance Company, supra; Turner v. State, 494 So. 2d 1292 (La. App. 2d Cir. 1986).
Simply stated, we need not find all four LeBrane factors in order to conclude that National is vicariously liable for the intentional tort committed by Ms. Sidney. The presence, however, of only factors three and four is not enough - - we must also find that either factor one or two is present. In this case, clearly factors three and four are satisfied, i.e., the act occurred on National's premises and during working hours. After reviewing numerous cases applying the factors from LeBrane, supra, we do not find, however, that either factor one or two is present under the facts we have before us.
In the case sub judice, regarding the first factor, that the act be primarily employment rooted, we find that Ms. Sidney's violent attack on Ms. Eichelberger was entirely extraneous to National's interests. The petition alleges that Ms. Sidney ignored Ms. E
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