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Eichelberger v. Sidney11/3/2000
however, involved sexual assault which the supreme court found to be entirely extraneous to the employer's interest and not a case where a supervisor's performance duties led to an intentional tort.
While we acknowledge that sexual assault among co-employees is more clearly motivated by personal concerns than many other types of intentional acts between co-employees, the reasoning utilized by the Baumeister court has been applied consistently to other factual scenarios. For example, in Watkins v. International Service Systems, 32,022 (La. App. 2d Cir. 6/16/99), 741 So. 2d 171, writ denied, 99-2129 (La. 10/29/99), 749 So. 2d 640, a supervisor questioned a janitorial employee about missing radios. The supervisor suspended the employee pending an investigation of the matter and the employee attacked the supervisor. The trial court granted the employer's motion for summary judgment and this court affirmed, relying, in part, on Baumeister. In Watkins, we concluded that the employee's duties entailed cleaning bathrooms and offices, not stealing radios and kicking his supervisor. We further held that, even though the supervisor was within his duties in suspending the employee, the employee's response had no root in an employment endeavor, but was motivated by purely personal concerns. Finally, we held that the battery did not further any interest of the employer.
Similarly, in Barto v. Franchise Enterprises, Inc., supra, a supervisor saw a cook exit the office area in a fast food restaurant. After finding money missing from a cash drawer in the office, the supervisor questioned the cook regarding the missing money. As the cook emptied his pockets to show the supervisor that he did not have the money, he pulled out a knife and began stabbing the supervisor. The trial court denied the employer's motion for summary judgment on the issue of vicarious liability, specifically, the issue of course and scope. This court reversed, holding that the employee's acts of stealing money and stabbing his supervisor during the investigation of the matter was "clearly beyond" the course and scope of the employee's employment and was not incidental to the performance of his duties. Holding that the intentional tort was "clearly motivated" by personal motives to take money from the business, we found that, on the evidence presented with the motion for summary judgment, the employer was not vicariously liable for the employee's intentional tort and was entitled to judgment as matter of law.
We also find the recent case of Ryback v. Belle, 98-2766 (La. App. 1st Cir. 2/18/00), 753 So. 2d 383, writ denied, 2000-0749 (La. 5/12/00), 762 So. 2d 14, to be very similar to the present case. In Ryback, co- employees of Winn-Dixie were unloading items from a truck into a walk-in freezer. Ryback attempted to exit the freezer with a pallet jack, accidentally closing the freezer door while Belle was inside. Belle came out of the freezer threatening Ryback and subsequently attacked and beat him. Relying, in part, on Baumeister, supra, the first circuit held that the employer was not vicariously liable. The court explained:
In this case, as in Baumeister, serving the master's business did not actuate the servant at all, much less to any appreciable extent. This is not a case where a supervisor's performance of his duties, such as disciplining or threatening to discipline an insubordinate employee, leads to an intentional tort.
The court further concluded that " he liklihood that an employee will become enraged when his co-employee accidentally closes the freezer door on him, and that the employee will then viciously attack his co- employee, is not a risk fairly attributable to the performance of the
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