Richard v. Hall - 03-1488 ( La. 04/23/04), 874 So. 2d 131

Rule:

When considering which risks an employer must bear under vicarious liability, the proper test bears resemblance to that which limits liability for workers' compensation, because the employer should be held to anticipate and allow for risks to the public that arise out of and in the course of his employment of labor. While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. The inquiry requires the trier of fact to determine whether the employee's tortious conduct 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 to conduct motivated by purely personal considerations entirely extraneous to the employer's interests.

Facts:

Screening Systems International, Inc., Louisiana Division (SSI), a closely held corporation, entered into a duck hunting lease. SSI paid $ 10,000 to Loch Leven Plantation for hunting privileges that were to be utilized by three upper level management executives. The three executives authorized to enjoy SSI's duck hunting lease were Mr. Henry Watson, Jr., President, Mr. Michael Hall, Vice-President and General Manager, and Mr. George LeBlanc, Engineering Manager. On January 2, 2000, Mr. Watson and Mr. Hall went to Loch Leven to hunt ducks. Also on that morning, John Richard was at Loch Leven to hunt as the guest of Todd Cavin; Mr. Cavin also held a duck lease at Loch Leven. According to the customary practice, numbers were randomly drawn to determine the order in which blinds would be chosen by those who had purchased hunting rights. Todd Cavin drew the number "1" which meant he had first selection of a blind to use that day. Mr. Cavin chose a blind that could accommodate two more people than he had in his party; the location consisted of two sunken blinds abutting each other. Mr. Cavin asked Mr. Watson and Mr. Hall if they wanted to hunt with his party at the better blind. Mr. Watson and Mr. Hall accepted the invitation. Mr. Watson, Mr. Hall and Mr. Richard occupied one of the blinds, with Mr. Richard seated in the middle. During the hunt, Mr. Hall accidentally and fatally shot Mr. Richard.

Mr. Richard's widow, Karen Richard, subsequently filed suit against Michael Hall, SSI, Allstate Insurance Company (Hall's homeowner's insurance provider), and Empire Insurance Company (SSI's general liability insurer). Plaintiffs assert two bases for holding SSI liable: (1) vicarious liability for its employee's tortious conduct; and (2) direct liability for its failure to instruct authorized employees and their guests in the proper and safe use of firearms while hunting pursuant to SSI's duck lease. The district court granted Empire's motion for summary judgment on the issue of vicarious liability. The court denied summary judgment on the negligence claim against SSI. Finally, the district court granted the motion, holding Louisiana's Recreational Use Immunity Statutes (RUS) barred plaintiffs' claim of negligence by SSI. The appellate court affirmed.

Issue:

Did the court err in granting summary judgment on the issue of vicarious liability  on the part of SSI?

Answer:

No.

Conclusion:

In the matter sub judice, the only factual support plaintiffs offered to support their allegation that Hall was within the course and scope of his employment at the time of the accident was the testimony of Hall and SSI's controller, that SSI intended the lease to be used for business purposes, and that it was treated as a business expense. Intent to utilize the recreational activity for business purposes and/or to entertain clients cannot transform the servant's activities to fall within the scope of employment. Where there is no evidence that any business related entertaining was ever done at the lease, that the servant had ever generated any business by his use of the lease, or that the servant was required to participate in the recreational activity, it cannot be said that his recreational activities were within the course and scope of his employment. Unlike the evidence in Ermert, SSI had not established the practice of using the recreational activity for the purpose of furthering its business interests. In resolving this issue, the Court’s focus is on the servant and whether his activity at the time of the accident was within the scope of his employment. The servant must be motivated at least in part to serve the master's business. Despite the Court’s diligent research, it was unable to find any jurisprudence from any jurisdiction in which an executive or servant was found to be in the scope of employment solely by the intent of the business to use the recreational activity for business purposes and/or to entertain clients, where the recreational activity had never been used for a business purpose, and was not being used for such purposes at the time of the incident giving rise to the litigation. A recreational activity cannot fairly be said to be characteristic of the business's activities merely upon the intent of the business to use the recreational activity for business purposes at an unspecified future time. Particularly relevant is that the servant, here Mr. Hall, for whose actions the plaintiffs are trying to hold the employer vicariously liable, never used the recreational activity for business purposes and was not actuated for purposes of serving the business at the time of the accident. Masters are broadly liable for torts of their servants but not liable for all their torts. When the tort becomes uncharacteristic of the business, liability is not imposed. Clearly, Mr. Hall's general activities at the time of this tragic accident were not within the scope of his employment.