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Eichelberger v. Sidney11/3/2000
employee's duties."
The supreme court has found employers vicariously liable for intentional torts of their employees in at least two cases; however, the facts in those cases are not identical to the ones presented in this case. First, in LeBrane, supra, LeBrane showed up for work late and Lewis, his supervisor, told him to leave and get a haircut. LeBrane would not leave and Lewis fired him, had him sign a termination slip and took him upstairs to the office for his termination pay. On the way back down in the elevator, an argument ensued and, once outside, the two starting fighting. Lewis, the supervisor, stabbed LeBrane. The trial court found no liability on the part of the employer and the court of appeal affirmed. The Supreme court reversed, holding that the dispute was employment related; that discharging the employee and ordering him off the premises was within the course and scope of supervisory employee's employment; and that the fight was reasonably incidental to the performance of the supervisor's duties in firing the recalcitrant employee and causing him to leave the premises. Significantly, and unlike the case before us, the injuring employee in LeBrane was the supervisor. The altercation occurred as an extension of the performance of his duties in discharging the employee. In the present case, the dispute was between co-employees of the hair salon. While, arguably, as a hairdresser, Ms. Eichelberger may have had some type of superior position to Ms. Sidney as receptionist, it was Ms. Sidney who committed the intentional tort, not Ms. Eichelberger. Additionally, we emphasize again that Ms. Sidney either ignored or refused Ms. Eichelberger's request that she put in the videotape, a task which Ms. Eichelberger claims was part of Ms. Sidney's job duties. We believe it unreasonable to say that Ms. Sidney's attacking her co-employee for performing a task which she refused to do herself was a forseeable extension of the performance of Ms. Sidney's job duties.
Second, in Benoit v. Capitol Manufacturing Co., 617 So. 2d 477 (La. 1993), rehearing granted in part (3/13/93), two co-workers were on break and got into an argument over whether to leave the door open or closed for reasons of temperature. An altercation ensued and one employee struck the other with a broomstick. The trial court found that the altercation was purely personal and, therefore, found that the employer was not vicariously liable and the court of appeal affirmed. Relying on LeBrane, the supreme court reversed that portion of the judgment, holding that the intentional act was "clearly employment rooted" and that the employment issue was temperature in the workplace. The employer was liable, therefore, in solido with the injuring employee for damages. The circumstances precipitating the altercation in Benoit, however, are distinguishable from the altercation between Ms. Sidney and Ms. Eichelberger. In Benoit, there had been previous disputes, between other co-employees, over whether this particular door should remain open or closed. In fact, prior to the incident occurring, a supervisor had instructed Bennett to put on a jacket if he was cold with the door open. Despite this instruction, Bennett remained intent on closing the door and, in fact, told another of his co-workers that " ne way or another, I am going to close the (expletives deleted) door." The altercation between Bennett and Benoit occurred shortly thereafter when Bennett went on break, attempted to close the door and Benoit tried to keep it open. The dispute was reasonably foreseeable and centered on whether or not to follow the instruction of the supervisor, or the policy, that the door be kept open.
In contrast to the Benoit case, where there was a d
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