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Guy v. Mitchell3/1/2002
of the workplace was an employment issue. However, in the instant case, Mitchell's intentional tort did not evolve from a dispute over an employment issue, but resulted from his personal anger at his co-employee unrelated to any employment duty or employer interest.
We find the instant case analogous to Hubbard v. Lakeland Nursing Home, 98-1893 (La. App. 3d Cir. 5/19/99), 734 So. 2d 1280, writ denied, 99-1705 (La. 10/1/99), 748 So. 2d 442. There, a supervisor informed a nursing assistant that personal visits were against nursing home policy. The nursing assistant later belligerently confronted the supervisor and accused her of being a racist. The supervisor then called the nursing home's administrator and reported the incident. In turn, the administrator called the assistant and told her to "clock out." After the assistant finished talking with the administrator, she physically assaulted the supervisor, breaking her nose and seriously bruising her face. In finding that the tortious acts were not primarily employment-rooted, the court stated that to find the conduct employment-rooted, the court would have to conclude that the nursing home was the intended beneficiary of the tortious act. However, the court found that the assault was clearly motivated by the nursing assistant's desire to further her personal interest. Her primary intent was to injure her co-worker, even if part of her motivation was to defend her civil rights or the rights of her co-workers.
Finally, we note that the plaintiffs rely on the case of Brumfield v. Coastal Cargo Company, Inc., 99-2756 (La. App. 4th Cir. 6/28/00), 768 So. 2d 634, writ denied, 2000-2293 (La. 10/27/00), 772 So. 2d 658 to support their argument that Mitchell's conduct was employment related. In Brumfield, a truck driver filed an action against a cargo company and its employee for injuries sustained in a fistfight which occurred while the employee was on the job . The truck driver addressed the employee in a derogatory way and inquired when the employee was going to load his truck. This conversation led to an altercation resulting in the truck driver's injuries. The court was called upon to decide whether the tortious conduct of the employee, a lift operator, was primarily employment-rooted, and whether the incident was reasonably incidental to the performance of the employee's duties as a lift operator. A policy manual given to new employees at the company contained a provision specifically prohibiting fighting or assaulting any person "where such conduct might embarrass the company with customers or the public, or would create ill will among employees...." In holding the evidence sufficient to find the employer vicariously liable, the appellate court (with one judge dissenting) stated the inference to be drawn was "that the possibility of fighting was a risk of harm fairly attributable" to the employer's business.
Plaintiffs argue that because Fibrebond maintained a policy prohibiting workplace violence, the possibility of fighting was a risk of harm fairly attributable to Fibrebond's business. Thus, they argue that Fibrebond, like the employer in Brumfield, is vicariously liable for Mitchell's actions. We disagree. Fibrebond's employment policy included a long litany of various actions that Fibrebond prohibits at the workplace, including "loafing," smoking, and soliciting contributions on company time. By listing such a large number of prohibited actions, the policy cannot be said to be one from which a fair inference can be drawn that fighting or workplace violence was a risk of harm fairly attributable to Fibrebond's business. Instead, the fair inference is that Fibrebond, through its policy, simply was attempting to make employees aware of th
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