Dickerson v. Piccadilly Restaurants, Inc.Dickerson v. Piccadilly Restaurants, Inc.
Donald R. DICKERSON
v.
PICCADILLY RESTAURANTS, INC. d/b/a Ralph & Kacoo's and Darryl Edwards.
Court of Appeal of Louisiana, First Circuit.
John B. Lambremont, Sr., Alan L. Schwartzberg, Baton Rouge, Counsel for Plaintiff-Appellant, Donald R. Dickerson.
*843 Dennis A. Pennington, Baton Rouge, Counsel for Defendant-Appellee, Piccadilly Restaurants, Inc. d/b/a Ralph & Kacoo's.
Before: LeBLANC, KUHN and MOORE,[1] JJ.
MOORE, J.
This appeal is from a summary judgment in favor of Piccadilly Restaurants, Inc., finding that the defendant/employer is not vicariously liable to Donald R. Dickerson, plaintiff, for the intentional tort of an employee in the absence of an employment-rooted dispute.
A judgment was signed dismissing plaintiff's claim, the court finding that no genuine issue of material fact existed and that as a matter of law, Piccadilly Restaurants, Inc. d/b/a Ralph & Kacoo's (Piccadilly) was entitled to judgment. Plaintiff's motion for a new trial was denied by the court. A devolutive appeal was filed by the plaintiff.
We affirm the trial court judgment.
FACTUAL BACKGROUND
A fight between Donald R. Dickerson and Darryl Edwards, employees of Ralph's & Kacoo's, occurred at approximately 4:15 p.m. at the restaurant on October 3, 1996. Dickerson had been at work most of the day, when Edwards arrived at 4:00 p.m. Dickerson was employed as a fry-cook, with general duties of food preparation for frying and catering. Edwards was also a fry-cook. As Edwards arrived and punched in on the time clock, he was told by another employee, Lance Milton, that Dickerson had attempted to "break into" Edwards' personal toolbox left at the restaurant from the day before. Edwards confronted Dickerson and struck Dickerson with his forearm. A scuffle broke out during which Edwards grabbed a whitehandled knife being used by Dickerson. By the time the fight ended, Dickerson had sustained stab wounds and lacerations to his right thumb, left hand, back, and side.
Dickerson brought suit naming as defendants Edwards and Piccadilly Restaurants, Inc. d/b/a Ralph & Kacoo's. Dickerson alleged that Ralph & Kacoo's was vicariously liable for the intentional tort committed on Dickerson by Edwards during the course and scope of Edwards' employment. Piccadilly filed a general denial answer and an alternative cross claim against Edwards. Piccadilly also filed a motion for summary judgment, urging its non-liability because Edwards' actions were not undertaken in the course and scope of his employment and that as a matter of law the employer could not be held vicariously liable. Counsel for defendant-appellee attached depositions of Dickerson, Edwards, Lance Milton, Brenda Harris, another kitchen employee, and the affidavit by Les Guerin, a unit manager at the restaurant.
SUMMARY JUDGMENT
Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966A(2). Summary judgments are reviewed on appeal de novo, under the same criteria applied by trial courts to determine whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University,
In Louisiana, the law regarding summary judgment is set forth in La. C.C.P. art. 966. This article was amended by Acts 1996 First Ex.Sess., 9 Section 1 to *844 legislatively overrule the jurisprudential presumption against summary judgment. The amendment "levels the playing field" between the parties by allowing the supporting documents submitted by the two parties to be scrutinized equally and removing the overriding presumption in favor of trial on the merits. Haves v. Autin, 96-287, p. 6 (La.App. 3 Cir. 12/26/96),
A motion for summary judgment should be granted if the pleadings, deposition, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B. The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Witek v. Morrisey,
However, when a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Pye, 97-237 at 4,
LEGAL PRINCIPLES
The general rule of law in Louisiana is that employers are not vicariously liable for the intentional torts of their employees, in that no right-thinking employer would authorize its employees to commit intentional wrongs, whether committed against third parties or co-employees. Both parties agree that the seminal case considering this issue is LeBrane v. Lewis,
In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest.
LeBrane.
The Supreme Court set forth four factors to be used in determining whether vicarious liability should be imposed, to-wit:
*845 1. Whether the tortious act was primarily employment-rooted;
2. Whether the violence was reasonably incidental to the performance of the employee's duties;
3. Whether the act occurred on the employer's premises; and
4. Whether the act occurred during the hours of employment.
LeBrane,
Many cases have interpreted and applied LeBrane. While each case turns on its own facts and are invariably fact-specific, the foundational principles conceptualized in LeBrane remain viable to this day. For example, in Faust v. Mendoza,
ANALYSIS
It is without dispute in this case that the third and fourth LeBrane factors are present in this case, namely that the stabbing by Edwards of Dickerson occurred on the employer's premises and that it occurred during the hours of employment. However, an employer is not vicariously liable merely because his employee commits an intentional tort on business premises during working hours. See Scott v. Commercial Union Ins. Co.
The Supreme Court had occasion to revisit LeBrane in the celebrated case of Baumeister v. Plunkett, 95-2270 (La.5/12/96),
"The LeBrane court expressly noted that the `employees' tortious conduct occurred while the employee was at least partly actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee, and it was reasonably consequent upon or incident to his performance of his employment function of hiring and firing sub-employees." Baumeister,673 So.2d at 997 .
The Baumeister Court found that the defendant's actions in precipitating unwanted sexual contact with the plaintiff did not further the employer's business and was not incidental to the performance of defendant's supervisory duties. Furthermore, the court found that the sexual assault was entirely extraneous to the employer's interest and did not involve the threat of the loss of employment. The court therefore held that defendant's acts were not employment-rooted.
In the case sub judice Edwards had just arrived at work and had not yet begun pursuing his employer's interest. He had not yet seen or talked to Dickerson; *846 rather, he had been advised by a co-employee, Lance Milton, that Milton had observed Dickerson attempt to enter Edwards' personal toolbox. Edwards' actions were not actuated by any purpose of his employer nor can it be plausibly said that Edwards' actions in taking umbrage for the perceived invasion of his personal belongings by Dickerson was in any way in support of the employer's principal mission.
Piccadilly correctly points out that in order to sustain a finding of vicarious liability attributable to the employer based upon respondeat superior, the court must distinguish which party is acting on behalf of the employer. In order to hold the employer liable, the tortfeasor must have been acting in a manner not purely personal in nature or extraneous to the employer's interests. In Barto v. Franchise Enterprises, Inc.,
It is apparent from the circumstances presented in the record that Fletcher intended his actions to harm Barto. The undisputed evidence shows that Fletcher's attack was not related to any of his employment duties, did not further any of his employer's objectives, was not a risk of harm fairly attributable to his employer's business, and was done for purely personal considerations....
Applying these principles to the instant case, in order for Piccadilly to be held vicariously liable under respondeat superior, we must find that Edwards' actions were actuated by a purpose of acting for his employer and that the purpose must be present when the assault on Dickerson occurred. Appellant asserts in brief that "the fight that broke out was over a work knife that was used in the kitchen in the furtherance of the employer's business." However, the record clearly demonstrates that Edwards took offense with Dickerson only because of Dickerson having "messed with" his personal property, the toolbox. Edwards was not on the clock when Dickerson allegedly attempted to enter Edwards' toolbox. The "employment-rooted" element of LeBrane is absent in our case.
Recent appellate jurisprudence also emphasizes the character of the connection of the employee's act to the employment purpose. In Allen v. Payne & Keller Co., Inc., 96-2326, p. 6 (La.App. 1 Cir. 4/8/98),
In order for the employer to be liable vicariously, there must be some type of employer-related catalyst, meaning the act performed (the intentional tort) should have some link to an employment-required duty.
In Allen, the employer was not found vicariously liable for the horseplay of his warehouseman. The warehouseman Stafford had evidently hit Allen in the buttocks when the latter was bent over in the warehouse. Although the act of striking Allen was an intentional act occurring in the workplace. "it was not incidental to the performance of Stafford's duties as a warehouseman." Allen, 96-2326 at p. 6,
Our Supreme Court has held that it is not determinative that the predominant motive of the tortfeasing servant is to benefit himself or a third person, for such a motive does not prevent the act from being within the scope of employment. Rather, the court will look to see if the purpose of serving the master's business actuates the servant to any appreciable extent. If so, the master is subject to liability if the act is otherwise within the service. Ermert v. Hartford Ins., Co.,
In brief, appellee correctly points out that the toolbox is not a work instrument but rather a personal item of Edwards. The knife within the toolbox, which is claimed to be the subject of the fight between Dickerson and Edwards, was never removed from the toolbox, which remained locked prior to and after the fight. No such employer-catalyst exists in order to find this LeBrane factor satisfied.
Benoit v. Capital Manufacturing Co.,
Dickerson asserts that the instant case is analogous to Benoit, contending that the violence was primarily employment-related. In support of this premise, Dickerson argues that Edwards' actions, while not benefiting the employer, were taken because of "Darryl Edwards' perception that violation of his toolbox and the equipment therein would have an adverse effect on his ability to perform the employer's business." This assertion is belied by the record. In Dickerson's deposition it was shown that the toolbox contained knives and various kitchen items commonly used by the entire kitchen staff. No single employee owned any particular knife or kitchen instrument. Rather, the utensils were the property of Ralph & Kacoo's, and if anyone needed similar items he had only to ask the manager. An order would be placed, or the employee would receive the needed items directly from the manager. It is clear that everything Edwards and Dickerson needed to perform their job as cooks was provided to them by supervisory staff.
The deposition testimony of co-employee Brenda Harris is instructive as to how this violence erupted almost simultaneously with Edwards' arrival at the work place. She describes what happened in the following manner:
Darryl was coming in from home to work, and he came right behind the line that I was frying on, and he like stumbled over my feet and I said, `Well, you could say excuse,' but it was like he had like a frown on his face. I don't know if he had a bad day or whatever, but it looked like that to me ... He did not say anything; he did not even say "excuse." So he just went on like he was going toward the back where Donald was. Lance was standing right there by the streamer, which is right by the fry station, and Lance told Darryl, "Man, Donald been in your toolbox; he got your knife ...." [S]o Darryl went straight back to Donald....
*848 Brenda Harris perceived that Edwards seemed to be in a bad mood from the moment of his arrival at work. Edwards, in his deposition, could not recall how the event happened or why it happened, only acknowledging that it should not have happened. The clear implication of the testimony of all of Ralph & Kacoo's employees is that the fight erupted for purely personal reasons when Edwards found out that Dickerson was attempting to enter Edwards' personal toolbox. The uncontested facts of this record will not support the contention that Edwards was acting within the ambit of his assigned duties or in the furtherance of his employer's objectives. The instant case is clearly distinguishable from both Benoit and LeBrane. The uncontested material facts presented by deposition and affidavit fail to demonstrate any employment-catalyst or employment-related nexus for the tort committed by Edwards upon Dickerson. The trial court was correct in declining to impose vicarious liability upon Piccadilly.
We note that summary judgment has been previously granted in at least two reported similar cases, Barto,
CONCLUSION
In this case, we find the motion for summary judgment was amply supported by the depositions of Dickerson and Edwards, and their co-employee witnesses, Brenda Harris and Lance Milton, as well as the affidavit by Les Guerin, unit manager of Ralph & Kacoo's on the date of the incident. This documentation having been affirmatively produced by the mover, it then became incumbent upon the adverse party to respond by setting forth, through affidavits or other counter-veiling proof, specific facts showing a genuine issue for trial. The record contains no such affidavits, nor even an opposition memorandum. The law, La. C.C.P. art. 967, prescribes the granting of summary judgment in such instance, if appropriate. See Traweek v. Jackson, 30,248 (La.App. 2 Cir. 2/25/98),
The decision of the trial court is affirmed at plaintiffs cost.
AFFIRMED.
NOTES
Notes
[1] Judge D. Milton Moore, III, of the Fourth Judicial District Court is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.