Jones et al v. Mid-South Mechanical Contractors, Inc. et al

Filing 58

ORDER AND REASONS granting 34 Motion for Partial Summary Judgment, as set forth in Order. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARRY JONES, ET AL.

CIVIL ACTION

VERSUS

NO: 16-16024

MID SOUTH MECHANICAL
CONTRACTORS, INC., ET AL.

SECTION “H”

ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Partial Summary Judgment on
the Issue of Vicarious Liability (Doc. 34). For the following reasons, this
Motion is GRANTED.
BACKGROUND
Plaintiff Larry Jones worked for Defendant Mid-South Mechanical
Contractors, Inc. (“Mid-South”) as a Field Operations Manager on the
renovation of Howard Elementary School in New Orleans. On May 8, 2014,
David Herin, an owner of Mid-South and project manager at the Howard site,
directed Plaintiff to fire employee Joseph Huval. Plaintiff alleges that Herin
was aware of Huval’s criminal past, propensity for violence, and tendency to
exhibit aggressive behavior. When Plaintiff informed Huval that he was fired,
Huval refused to leave and antagonized and provoked Plaintiff. Plaintiff then
contacted Herin for assistance. He alleges that upon arriving at the scene,

Herin failed to diffuse the situation and instead attempted to hit Huval with a
tape measurer. When Plaintiff tried to prevent the altercation, Huval struck
him in the head, knocking him out. He suffered a brain injury and neck injury
as a result of this incident, ultimately necessitating a cervical fusion. He
alleges that Mid-South is vicariously liable for the actions of Huval. Plaintiff
has filed a Motion for Partial Summary Judgment on the issue of vicarious
liability. Defendant opposes.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”1 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”2
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor.3 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”4 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”5 “In response to a
Fed. R. Civ. P. 56(c) (2012).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
4 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
5 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.”6 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.”7

Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”8
LAW AND ANALYSIS
Plaintiff ask the Court to find that Defendant Mid-South is vicariously
liable for the actions of Joseph Huval. Under Louisiana law, vicarious liability
for intentional torts is governed by the standard articulated in LeBrane v.
Lewis, 292 So. 2d 216 (La. 1974). There, the Louisiana Supreme Court found
that an employer was vicariously liable for the intentional tort of a supervisory
employee who stabbed a former co-employee during a dispute that arose out of
the supervisor’s firing of the co-employee. In reaching this conclusion, the
court considered the following factors:
(1) whether the tortious act was primarily employment rooted;
(2) whether the act was reasonably incidental to the performance
of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
7 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
8 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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All four factors need not be present for liability to be imposed on an employer.9
Additionally, an employer is not vicariously liable merely because his employee
commits an intentional tort on the employer’s premises during working
hours.10 “The particular facts of each case must be analyzed to determine
whether the employee’s tortious conduct was within the course and scope of his
employment.”11
Plaintiff has moved for summary judgment, arguing that there is no
genuine issue of material fact precluding a finding that Defendant is
vicariously liable for Huval’s actions. The parties agree that factors three and
four are undisputed; however, they disagree as to whether factors one and two
are satisfied.

Defendant argues that vicarious liability cannot be found

because (1) Huval was fired prior to committing the tortious act in question
and (2) that his actions were personally motivated. The Court will address
each of these arguments in turn.
I. Whether Huval was Terminated Prior to the Encounter in Question
is Not Dispositive to the Issue of Vicarious Liability
Defendant argues that a finding of vicarious liability is precluded
because Huval was fired before the tortious conduct took place.

Plaintiff

responds in opposition, arguing that the timing of Huval’s firing is not
dispositive of the issue. The Court agrees. Other courts, including another
section of this Court, have found that tortious conduct that takes place after
an employee is terminated can be considered to be within the course and scope
of employment where the tortious conduct is part of a single transaction

Baumeister v. Plunkett, 673 So.2d 994, 997 (La. 1996).
Id.
11 Id.
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beginning during the period of employment.12 The basic facts surrounding
Huval’s termination are not in dispute. Plaintiff informed Huval that he would
terminated for failure to perform, at which point Huval responded violently.
Plaintiff called his supervisor David Herin for assistance. When Herin arrived,
Huval spat in his mouth and punched Jones in his head, knocking him out.
The exact point at which Huval’s employment ended is immaterial, as the
tortious conduct was part of the continuous process of termination.

This

transaction could only be found to be employment rooted.
II. It is Beyond Genuine Dispute that Huval’s Actions were
Employment Rooted
Defendant next argues that Huval’s actions were personally motivated,
precluding a finding of vicarious liability.

In support of this contention,

Defendant points to the deposition testimony of Don Herin, wherein he
indicates that there was an altercation between Huval and Plaintiff on the day
preceding Huval’s termination. Defendant argues, somewhat perplexingly,
that this evidence indicates that the dispute was personally motivated. The
Court finds that this testimony actually further supports Plaintiff’s contention
that the altercation surrounding the termination was employment rooted, as
it appears that the prior day’s confrontation was also employment rooted.
Regardless, there is no record evidence from which a reasonable finder of fact
could conclude that an altercations surrounding the termination of this
employee was anything but employment rooted.

West v. Rieth, 152 F. Supp. 3d. 538, 548 (E.D. La. 2015) (finding that alleged tortious
conduct committed weeks after employee was terminated could relate back to the period of
employment for purposes of vicarious liability where it is part of a transaction that began
during the period of employment); See also Cowart v. Lakewood Quarters Ltd. Partnership,
961 So. 2d 1212, 1215 (La. App. 1 Cir. 2007) (suggesting that tortious action may be within
the course and scope of employment beyond the technical end of employment).
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Courts presented with similar factual situations have found likewise.
The Court finds the case of Carnes v. Wilson to be particularly instructive.13
There, as here, a subordinate employee struck a superior after the superior
criticized his work.14 The court of appeal, in affirming the trial court’s granting
of summary judgment in favor of the plaintiff, noted that “the obvious reason
for the physical attack on [plaintiff] was that it was in direct response to the
complaints [plaintiff] had made regarding [the tortfeasor’s] job performance.”15
Additionally, the Carnes plaintiff had a history of complaining about the
quality of the tortfeasor’s work. Here, the fact that Huval and Plaintiff
previously had a rocky workplace relationship does not take the altercation
outside of the sphere of employment. There is no record evidence indicating
that the two had any relationship outside of the workplace. Accordingly, the
Court finds that altercation was employment rooted.
The Court also finds that the dispute was reasonably incidental to the
performance of the employee’s duties. In Cowart v. Lakewood Quarters Ltd.
Partnership, the plaintiff was assaulted by a subordinate she was attempting
to terminate.16 In finding the employer vicariously liable, the court noted that
“her duties implicitly included being counseled by her superiors regarding
complaints about her job performance and the actions to be taken as a result
of those complaints.”17

Here, Huval was in the process of receiving such

criticism when he stuck Plaintiff. The tort was therefore reasonably incidental
to the performance of his duties.

118 So. 3d 1275 (La. App. 2 Cir. 2013).
Id. at 1278.
15 Id.
16 Cowart v. Lakewood Quarters Ltd. P'ship, 961 So. 2d 1212, 1215 (La. App. 1 Cir.
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2007).
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Id.
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Accordingly, having found the Lebrane factors satisfied, the Court finds
that Plaintiff is entitled to summary judgment on the issue of vicarious
liability.
CONCLUSION
For the forgoing reasons, Plaintiff’s Motion for Partial Summary
Judgment is GRANTED.
New Orleans, Louisiana this 31st day of July, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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