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Guy v. Mitchell3/1/2002
y Mitchell was within the course and scope of his employment.
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). An appellate court reviews summary judgments de novo under the same criteria that govern a trial court's considerations of the appropriateness of summary judgment. Watkins v. International Service Systems, 32,022 (La. App. 2d Cir. 6/16/99), 741 So. 2d 171, writ denied, 99-C-2129 (La. 10/29/99), 749 So. 2d 640.
In Watkins, this court discussed the exception to an employee's exclusive remedy in workers' compensation for the intentional torts of an employer or co-employee. We also discussed an employer's vicarious liability for the intentional acts of its employee:
Ordinarily, an employee's exclusive remedy for an on-the-job injury is workers' compensation. La. R.S. 23:1031, 1032. However, La. R.S. 23:1032(B) provides an exception to this rule for intentional torts. According to this exception, neither an employer nor a co-employee who willfully causes an employee's injury can avail himself of the shield of tort immunity generally provided by La. R.S. 23:1032. Moreover, an employer can be held vicariously liable for the intentional acts of its employee. Barto v. Franchise Enterprises, Inc., 588 So. 2d 1353 (La. App. 2d Cir. 1991), writ denied, 591 So. 2d 708 (La. 1992); Baumeister, supra; LeBrane v. Lewis, 292 So. 2d 216 (La. 1974); Barto, supra, and authorities therein. Nevertheless, such liability extends only to those acts which are within the course and scope of the injuring employee's employment. LSA-C.C. art. 2320; Baumeister v. Plunkett, 95- 2270 (La. 05/21/96), 673 So. 2d 994; Barto, supra. The course of employment test refers to time and place. Baumeister, supra. The scope of employment test examines the employment related risk of injury. Id.
Indeed, in order for vicarious liability to attach, the tortious conduct of the employee 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.
Our supreme court has suggested the following factors be considered in holding an employer vicariously liable for an employee's deliberate actions: whether the tortious act was primarily employment rooted; whether the violence was reasonably incidental to the performance of the employee's duties; whether the act occurred on the employer's premises; and, whether it occurred during the hours of employment. (Emphasis added.) LeBrane, supra. It is not necessary that all four factors be met in order to find liability. Baumeister, supra; Barto, supra.
Thus, an employer is not vicariously liable for the intentional acts committed by its employee merely because his employee commits an intentional tort on the business premises during working hours; instead, vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objectives. Baumeister, supra; Barto, supra. The particular facts of each case must be examined to determine whether an employee's act is within the course and scope of his employment. Id.
Without dispute, Mitchell's attack on Guy occurred on Fibrebond's premises during working hours. Thus, the third and fourth factors from LeBrane, supra, are satisfied. The rem
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