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Eichelberger v. Sidney11/3/2000
ispute as to whether to open or close the door, in the case sub judice, there was no dispute as to whether or not the videotape should be played for the children's entertainment. In other words, the intentional tort in this case did not involve a "dispute" over an employment issue.
In summary, under either of Ms. Eichelberger's versions of events, i.e., the scenario provided in the petition or the scenario described in her deposition, we find neither factor one nor two of the LeBrane test to be present. The attack was not employment rooted nor was it incidental to the performance of Ms. Sidney's duties. Moreover, Ms. Sidney's violent, unexpected reaction to Ms. Eichelberger's attempt to insert the videotape was a completely unexpected and unforeseeable response under the circumstances and, as previously stated, certainly was not a risk "fairly attributable" to the performance of Ms. Sidney's job duties. See Ryback v. Belle, supra. On the record before us, we find, therefore, as a matter of law that National is not vicariously liable for the intentional tort committed by Ms. Sidney.
CONCLUSION
For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of National Hair Care Center, Inc., is affirmed. Costs are assessed against Plaintiff/Appellant, Patsy Eichelberger.
AFFIRMED.
CARAWAY, J., dissenting.
I respectfully dissent since I believe the multi-faceted determination of the course and scope of employment presents a genuine issue of material fact which makes a summary judgment improper in this case. Despite the majority's excellent survey of the jurisprudence which has struggled on the celebrated slippery slope of LeBrane, LeBrane's testing criteria - - "primarily employment rooted" and "reasonably incidental" to the employee's duties - - present mixed questions of law and fact which juries should weigh and which are not subjects for summary judgment. Despite the obvious on-the-job tensions between these two employees which were described in the plaintiff's petition, the majority has effectively dismissed the tort claim for no cause of action by weighing those tensions on its scales for reasonable foreseeability. Since critics of LeBrane's policy choice can always argue that violent and intentional employee attacks are never reasonably foreseeable events which should make an employer vicariously responsible in tort, the majority's analysis therefore is basically a rejection of LeBrane. Until LeBrane is overruled by the supreme court, I must vote to allow the fact finder to first wrestle with these cases. Finally, the majority's ability to pronounce as a matter of law the absence of work-related injury in this case might also be used in support of argument against plaintiff's recovery for worker's compensation benefits. Those benefits should remain available to her in view of the supreme court's ruling in Gagnard v. Baldridge, 612 So.2d 732 (La. 1993) despite the parallel tests for a LeBrane claim and a worker's compensation claim under La. R.S. 23:1031(A).a
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