67 So. 3d 1277
La. Ct. App.2011Background
- Fire started by Gammon Enterprises during roofing work on the Edge Bar & Grill premises leased by Earl Doucet and subleased to Turf Club/The Edge.
- Gamon’s liability insurance had lapsed at the time of the accident.
- Certified Cleaning performed fire and smoke damage cleanup and sued Doucets, Lafayette Insurance, Turf Club, The Edge, and Gammon for unpaid fees totaling $45,992.59.
- Trial court found Gammon negligent, treated Gammon as employee of Doucet, and held Doucets vicariously liable and independently liable for negligent hiring; Lafayette insured the property.
- Appellants (Doucets and Lafayette) appeal, challenging vicarious liability and negligent hiring rulings; court reverses on both counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vicarious liability—employee vs independent contractor | Doucets were not liable as Gammon was independent contractor | Gamon was an employee whose negligence could be imputed to Doucet | Gammon was independent contractor; no vicarious liability. |
| Negligent hiring liability | Doucets independently liable for negligent hiring of Gammon | No negligent hiring; insufficient knowledge of risk | No negligent hiring liability; trial court manifestly erred. |
| Mutual waiver clause in lease | Clause precludes Doucet liability | Waiver should apply to bar claims | Not reached/need not address due to reversal on other grounds. |
Key Cases Cited
- Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (La. 1972) (factors for determining independent contractor status; control is key)
- Hemphill v. State Farm Ins. Co., 472 So.2d 320 (La.App. 3 Cir. 1985) (negligent hiring requires knowledge of contractor’s deficiencies)
- Perkins v. Gregory Mfg. Co., 671 So.2d 1036 (La.App. 3 Cir. 1996) (negligent hiring requires evidence of knowledge of risk; no liability here)
- Roberts v. State, Through Louisiana Health and Human Resources Administration, 404 So.2d 1221 (La.1981) (right of control as central to vicarious liability analysis)
- Villaronga v. Gelpi Partnership Number 3, 536 So.2d 1307 (La.App. 5th Cir. 1988) (inherent danger or authorizing unsafe practice as basis for liability)