Louisiana Civil Code article 2320 is the foundation for the theory of respondeat superior, which in Latin means ‘Let the Master Answer.’ It states, “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Therefore, employers are only responsible for their employees’ actions if it occurs in the course and scope of their employment. Louisiana case law has created different factors and tests to apply this theory; however, there is no bright line rule in use.
Generally, an employee’s conduct is within the course and scope of his employment if the conduct is the kind that he is employed to perform (Orgeron v. McDonald). An employer will be responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest. In determining whether the employee’s conduct is employment related, the court assesses several factors, including the payment of wages by the employer; the employer’s power of control; the employee’s duty to perform the act in question; the time, place, and purpose of the act in relation to the employer’s service; the relationship between the employee’s act and the employer’s business; the benefits received by the employer from the act; the employer’s motivation for performing the act; and the employer’s reasonable expectation that the employee would perform the act (Woolard v. Atkinson).
The Fifth Circuit Court of Appeal in Portillo v. Progressive Paloverde Insurance Company recently had to decide whether or not respondeat superior would be applicable in the case. The victims of the car crash filed a lawsuit against the defendants for personal injuries sustained in a three-vehicle crash that occurred on July 8, 2011. The petition alleges that Mr. Robert Masters rear ended the victims while driving a 2003 Volkswagen Jetta. The petition further alleges that Mr. Masters was in the course and scope of his employment with Walker Volkswagen when the accident occurred, thereby imputing to Walker Volkswagen the fault and negligence of Mr. Masters under the theory of respondeat superior. Defendants subsequently moved for summary judgment, which the district court granted on April 11, 2013.
Mr. Masters testified that he was employed by Walker Volkswagen as a shop foreman at the time of the accident. As a shop foreman, he worked on any vehicles that came to the dealership for repairs and assisted any technician in need of help. He further stated that it was customary that he test drive the vehicles following repairs to ensure that they were running properly. Mr. Masters confirmed that he worked on the day of the accident, arriving at approximately 7:15am, but left at lunch time in his personally owned vehicle to run a personal errand. Prior to that date, his Volkswagen Jetta did not run. Consequently, he had not yet registered or obtained insurance on the vehicle. On the date of the accident, the Jetta was running. Accordingly, Mr. Masters went to Capital One Bank on Williams Boulevard to withdraw cash so he could obtain the proper paperwork and insurance coverage on the vehicle. He also stated that he used this errand as an opportunity to test drive his vehicle. When Mr. Masters was returning to Walker Volkswagen from the bank, he rear-ended plaintiffs’ vehicle. Mr. Masters gave a Walker Volkswagen insurance card to the police following the accident. He explained that he routinely carried his employer’s insurance information should an accident occur while test driving repaired vehicles. He further stated that he made a mistake in giving the Walker Volkswagen insurance information to the police.
Mr. Masters explained that he created a ticket for each vehicle upon which he worked. Walker Volkswagen paid him on a ticket by ticket basis. Walker Volkswagen did not pay Mr. Masters for any time between tickets. Walker Volkswagen required Mr. Masters to clock in at the start of his work and clock out at the conclusion of his work for each ticket. This practice was also applied to test drives. Mr. Masters was working on a Walker Volkswagen customer vehicle prior to leaving the dealership to run his personal errand. He testified that he did clock off the ticket he was working on prior to running his personal errand. Therefore, Mr. Masters did not get paid for the time he spent going to the bank. Mr. Masters testified that on the date of the accident, he went to the bank on his lunch break. Generally, going to and from lunch ordinarily is not a function in which an employee is “employed,” for respondeat superior purposes (McGee v. State Farm). Further, Mr. Masters clearly testified that he was not working on his own vehicle, but a Walker Volkswagen customer vehicle, prior to going to the bank. Moreover, he unequivocally testified that he clocked off the customer ticket and did not clock back in on his or on any other ticket prior to running his personal errand. Mr. Masters had to clock in on his own ticket for Walker Volkswagen to be obligated to pay him for the test drive of his personal vehicle. Plaintiffs offered no such evidence at the summary judgment hearing.
The facts of the case showed although the defendant was a party to a motor vehicle accident during working hours, Mr. Masters was conducting a personal errand in his personal vehicle on his personal time. He was off the clock at the time of the accident, and was therefore not compensated by Walker Volkswagen. Neither his errand to the bank nor the “test drive” of his personal vehicle was at the request of or served any benefit to Walker Volkswagen. The Court of Appeal affirmed the trial court’s judgment and found that Mr. Masters was not in the course and scope of his employment at the time of the accident.
If you, a family member, or friend has been injured by someone who was working at the time of the accident, the victim may be allowed to file suit against both the employee and employer. Specific facts of each case play a major role in applying respondeat superior. There are many difficult questions that need to be answered in deciding whether or not this theory will apply in your case. These issues are best suited for the experienced personal injury attorneys at the Cardone Law Firm. Cliff Cardone understands that when a person is looking for an attorney they are looking for someone to guide them through the legal process and, at the same time, avoid the pitfalls that surely come about. That is why he has dedicated his career fighting for injured people and their struggles securing the best possible financial recovery. Personal injury cases can leave a victim physically, emotionally, and financially destroyed. Phone Cardone at 1-888-892-2736 or 504-522-3333 as quickly as possible or you can fill out our online contact form to receive quick feedback from Mr. Cardone or from one of his professional legal assistants concerning your case.
The Cardone Law Firm provides legal services for all of Louisiana including Ascension Parish, Donaldsonville, Assumption Parish, Napoleonville, Baton Rouge, Jefferson Parish, Estelle, Gretna, Harvey, Kenner, Marrero, Metairie, New Orleans, Terrytown, Westwego, Lafayette Parish, Lafourche Parish, Thibodaux, Livingston Parish, Orleans Parish, Plaquemines Parish, Belle Chasse, and St. Charles Parish.