Parmer v. SuseParmer v. Suse
Anna PARMER,
v.
Raymond SUSE, et al.
Court of Appeal of Louisiana, First Circuit.
*667 H. Edward Sherman, Cynthia P. Lavespere, New Orleans, for plaintiff-appellant Anna Parmer.
Richard D. Mere, William D. Hunter, Morgan City, for defendant-appellee Plantation Inn, Inc.
Joseph A. Sсhittone, Jr., Baton Rouge, for Illinois Ins. Exchange.
Before LeBLANC, PITCHER and FITZSIMMONS, JJ.
PITCHER, Judge.
Anna Parmer (plaintiff) appeals from the trial court's granting of a motion for summary judgment finding that defendant, Plantation Inn, Inc., was not vicariously liable for Raymond Suse's actions. We affirm.
FACTS
Plaintiff was employed by KQKI radio station as an account executive. Plaintiff's duties consisted of selling programs/advertisements. On or about July 7, 1992, рlaintiff sold an advertisement to David Drash (Mr. Drash), lessee of the Plantation Inn restaurant (Cajun Dave's) in Morgan City, Louisiana.[1] This advertisement was for Mr. Drash's restaurant business. Two days later (July 9, 1992), Mr. Drash, alоng with Raymond Suse (Mr. Suse), contacted the plaintiff to discuss purchasing additional advertisements.
Plaintiff testified that on July 9th, she agreed to meet with Mr. Drash and Mr. Suse at 10:00 p.m. at the Plantation Inn hotel to discuss the purchase of advertisement, more specifically, the purchase of advertisement by Mr. Suse for the hotel.
After arriving at the hotel, plaintiff, along with Mr. Drash and Mr. Suse, had a few alcoholic beverages and decided to have dinner at the Petroleum Club in Morgan City. While having dinner, plaintiff stated that the topic of sex was brought up by Mr. Suse. Plaintiff stated that at this point, she reprimanded Mr. Suse when he mentioned the topic of sex. Plaintiff stated that upon leaving *668 the Petroleum Club, she was physically assaulted by Mr. Suse.
On June 28, 1993, plaintiff filed a pеtition for damages, alleging that Plantation Inn, Inc. was vicariously liable for the negligent acts and omissions of Mr. Suse.[2] Plaintiff alleged that Mr. Suse was acting in the course and scope of his employment or agencyship or officer status with Plantation Inn, Inc.
Plantation Inn, Inc. filed a motion for summary judgment on December 20, 1993, alleging that there was no employee/emрloyer relationship between Mr. Suse and Plantation Inn, Inc.
After a hearing, the trial court rendered a judgment granting the motion for summary judgment in favor of Plantation Inn, Inc. and dismissing Plantation Inn, Inc. from the lawsuit. Plaintiff now appeals the judgment.
SUMMARY JUDGMENT
It is well settled that the granting of a summary judgment is proper only when the pleadings, depositions, answers to interrogatories, and admissions on filе, together with affidavits, if any, show 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; Lewis v. Diamond Services Corporation, 93-1150, p. 5 (La.App. 1st Cir. 5/20/94),
Summary judgments are not favored, and any reasonable doubt should be resolved against the mover. In determining whether material issues have in fact been disposed of, any doubt is to be resolved agаinst granting the summary judgment and in favor of trial on the merits. O'Quinn v. Power House Services, Inc.,
VICARIOUS LIABILITY
Plaintiff contends that Plantation Inn, Inc. is vicariously liable for the actions of Mr. Suse. Plaintiff further contends that during the time of the incident, Mr. Suse was an employee and/or agent of Plantation Inn, Inc. and was acting for the benefit of Plantation Inn, Inc.
On the other hand, Plantation Inn, Inc. argues that it is not vicariously liable because Mr. Suse was not an employee or officer of Plantation Inn, Inc. on the date of the incident.
A master or employer is answerable for the damage occasionеd by their servants and overseers, in the exercise of the functions in which they are employed. See LSA-C.C. art. 2320. [T]wo essential elements must be established before liability of an employer attaches, namely, (1) that a master-servant or employer-employee relationship existed between the employee tortfeasor and the employer, and (2) thаt the tortious act of the servant or employee was committed within the scope and during the course of his employment by the employer sought to be held liable. St. Paul Fire & Marine Insurance Company v. Roberts,
In determining whether an employment relationship exists the jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision ovеr an individual. Hryhorchuk v. Smith,
The record reflects that Mr. Suse was a resident of Springfield, Massachusetts. *669 Prior to May 15, 1992, Mr. Suse was the president of Plantation Inn, Inc. On occasion, Mr. Suse would cоme to the Plantation Inn hotel in Morgan City to check on how things were being run. Mr. Suse's reason for visiting the Plantation Inn hotel was because he was about to become a part of Plantation Inn, Inc. through the purchase of stock. Mr. Suse stated that he did not have any specific duties when he came to the Plantation Inn hotel.
The record contains an аffidavit from Carmella Craig which states that during the month of July, 1992, Mr. Suse was not employed by Plantation Inn, Inc. nor did he hold any official capacity with Plantation Inn, Inc. The record also contains copies of the minutes from the meetings held by the board of directors which show that Mr. Suse was terminated as the president of Plantation Inn, Inc. on May 15, 1992, and Ms. Craig was elected аs his replacement on May 18, 1992.
After reviewing the evidence, the trial court held that the incident between Ms. Parmer and Mr. Suse occurred after Mr. Suse was dismissed as president of Plantаtion Inn, Inc. The trial court concluded that since Mr. Suse was no longer associated with Plantation Inn, Inc., Plantation Inn, Inc. was not vicariously liable.
Based upon our review of the rеcord, we find that the trial court was correct in determining that Plantation Inn, Inc. was not vicariously liable for the actions of Mr. Suse. On the date of this incident, Plantation Inn, Inc. had no control over the actions of Mr. Suse, or the manner in which Mr. Suse acted.[3] Thus, no master-servant or employee-employer relationship existed.
NEGLIGENCE
Plaintiff argues that Plantation Inn, Inc. is directly liable because it negligently selected Mr. Suse to represent the corporation in its affairs with third persons. Plaintiff further argues that Plantation Inn, Inc. was negligent by letting Mr. Suse represent the corporation under circumstances which it knew or should have known would lead to the type of conduct displayed by Mr. Suse.
LSA-C.C. art. 2315 provides as follows:
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
In determining negligence liability, the courts of this state have adopted a duty-risk analysis approаch. See Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company,
(1) Was the conduct in question a cause-in-fact of the resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Were the requisite duties breached?
(4) Was the risk, and harm caused, within the scope of protеction afforded by the duty breached?
Mart v. Hill,
DUTY
It is well settled that there is no duty to control, or warn against, the criminal actions of a third person so as to prevent him from causing physicаl injury to another, unless some special relationship exists to give rise to such a duty. Smith v. Howard,
Based upon the record, we agree with the trial court's conclusion that Mr. Suse was not an employee of Plantation Inn, Inc. Furthermore, we find that no special relationship existed between Plantation Inn, Inc. and Mr. Suse. Therefore, Plantation Inn, Inc. owed no legal duty to plaintiff. This assignment of error lacks merit.
CONCLUSION
For the foregoing rеasons, the judgment of the trial court granting the motion for summary judgment, and dismissing Plantation Inn, Inc. from the lawsuit, is affirmed. Costs of this appeal are assessed against plaintiff, Anna Parmer.
AFFIRMED.
LeBLANC, J. concurs.
NOTES
Notes
[1] The Plantаtion Inn restaurant is located on the same premises as the Plantation Inn hotel.
[2] Ms. Parmer's petition also named as defendants Raymond Suse, First Oak Brook Corporation Syndicаte, and XYZ Insurance Company.
[3] In this assignment of error, plaintiff also contends that Mr. Suse was an agent of Plantation Inn, Inc., and therefore, Plantation Inn, Inc. is vicariously liable for his actions.
However, a principal is not liable for the physical torts of a non-servant agent. Lasseigne v. American Legion, Post 38,
Based upon the record, we find that this contention lacks merit because Plantation Inn, Inc. did not have any control over the actions of Mr. Suse.