Lou et al v. Lopinto et al

Filing 214

ORDER AND REASONS - Before the Court is Defendants Victory Real Estate Investments LA, LLC's and Westgate Investors NO, LLC's d/b/a Westgate Shopping Center (collectively, "Victory and Westgate's") Motion for Summary Judgme nt 138 . After careful consideration of the parties' memoranda and the applicable law, the Motion is GRANTED in part and DENIED in part. The Motion is GRANTED to the extent that Victory and Westgate seek summary judgment on Plaintiffs' claim that they are liable for their direct negligence, and that claim is DISMISSED with prejudice. The Motion is otherwise DENIED. Signed by Judge Wendy B Vitter on 5/19/23. (cg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONNA LOU, ET AL.

CIVIL ACTION

VERSUS

NO. 21-80

JOSEPH P. LOPINTO, III, ET AL.

SECTION: D (2)

ORDER AND REASONS
Before the Court is Defendants Victory Real Estate Investments LA, LLC’s and
Westgate Investors NO, LLC’s d/b/a Westgate Shopping Center (collectively, “Victory
and Westgate’s”) Motion for Summary Judgment.1 Plaintiffs oppose the Motion,2 and
Victory and Westgate have filed a Reply.3
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is GRANTED in part and DENIED in part.
I.

FACTUAL AND PROCEDURAL BACKGROUND4
In the instant Motion, Victory and Westgate seek summary judgment and

dismissal of all claims asserted against them by Plaintiffs in this civil rights case. 5
While Plaintiffs allege that Victory and Westgate are directly liable for their own
negligence, Victory and Westgate assert that there is no factual allegation in the
Complaint giving rise to Plaintiffs’ conclusory allegation of direct negligence. 6 As
such, Victory and Westgate contend that Plaintiffs assert only one claim against

R. Doc. 138.
R. Doc. 142.
3 R. Doc. 149.
4 The Court set forth the facts of this case in great detail in its May 18, 2023 Order and Reasons (R.
Doc. 208) and, for the sake of brevity, they will not be repeated here.
5 R. Doc. 138 at p. 1.
6 R. Doc. 138-2 at p. 3 (citing R. Doc. 1 at ¶ 27).
1
2

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them, arising from a theory of vicarious liability for the actions and omissions of their
private security detail, defendant Deputy Chad Pitfield.7 Victory and Westgate claim
that the undisputed evidence shows that they had no control over Deputy Pitfield’s
training, policy, methods, or actions and, as such, there was no employer-employee
relationship for which Victory and Westgate can be held vicariously liable.8 Instead,
Victory and Westgate assert that Deputy Pitfield is an independent contractor, and
that they did not exercise sufficient control over Deputy Pitfield to be held vicariously
liable for his actions.9 Alternatively, if the Court finds that they are vicariously liable
for the actions of Deputy Pitfield, Victory and Westgate assert that it is undisputed
that Deputy Pitfield’s conduct did not cause E.P.’s injuries.10 Accordingly, Victory
and Westgate assert that they cannot be held liable in this matter.
Plaintiffs oppose the Motion, asserting that they do not seek to hold Victory
and Westgate liable as the direct employers of Deputy Pitfield, and instead seek to
hold them liable for Deputy Pitfield’s acts and omissions under the “borrowed
employee” doctrine.11 Plaintiffs contend that the borrowed employee doctrine has
been applied to paid detail officers like Deputy Pitfield, and that Victory and
Westgate are liable for the actions of their borrowed employees “regardless of whether
they are independent contractors or not.” 12 Plaintiffs assert that the borrowed
employee doctrine, which has a nine-factor test, is distinct from the five-factor

R. Doc. 138 at p. 1.
Id.; R. Doc. 138-2 at p. 3 (citing R. Doc. 138-4 at pp. 2 & 8; R. Doc. 138-5 at pp. 2-3, 9, & 12).
9 R. Doc. 138 at p. 1; R. Doc. 138-2 at pp. 3 & 5-11.
10 R. Doc. 138 at p. 1; R. Doc. 138-2 at pp. 1 & 11-14.
11 R. Doc. 142 at p. 1 (citing R. Doc. 1 at ¶¶ 27, 63)
12 R. Doc. 142 at p.1 (citing Benelli v. City of New Orleans, 478 So.2d 1370 (La. App. 4 Cir. 1985)); R.
Doc. 142 at pp. 4-6.
7
8

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independent contractor/employee analysis.13 Plaintiffs argue that the Motion should
be denied because Victory and Westgate failed to address whether Deputy Pitfield
was an employee borrowed from the Jefferson Parish Sheriff’s Office (“JPSO”), which
is Plaintiffs’ theory of the case.14 Plaintiffs further assert that the Motion should be
denied because a reasonable juror could find that Deputy Pitfield was a borrowed
employee.15 Finally, Plaintiffs assert that the Motion should be denied because “it is
very much disputed” whether Deputy Pitfield’s restraint of E.P. caused his injuries,
especially since the Jefferson Parish Coroner’s Office found that prone positioning
was a contributing cause of E.P.’s death.16
In response, Victory and Westgate assert that Plaintiffs’ “borrowed employee”
argument is a red herring, since there is no substantial difference between that
analysis and the independent contractor analysis vis-à-vis an employer’s vicarious
liability. 17 Victory and Westgate claim that none of the cases cited by Plaintiffs
reference the word “borrowed” and that those courts performed the independent
contractor analysis in determining the employment status of a worker.18 Victory and
Westgate assert that under either analysis, the right to control is paramount. 19
Nonetheless, Victory and Westgate claim that under the Ruiz test, the totality of the

R. Doc. 142 at p. 2 (citing Mays v. Director, Office of Workers’ Compensation Programs, 938 F.3d 637
(5th Cir. 2019)); R. Doc. 142 at pp. 3-4.
14 R. Doc. 142 at pp. 2 & 6-8.
15 R. Doc. 142 at pp. 2 & 8-10.
16 R. Doc. 142 at pp. 2 & (citing R. Doc. 142-4 at p. 2); R. Doc. 142 at pp. 11-12.
17 R. Doc. 149 at p. 1.
18 Id. at p. 2 (citing Bolden v. Tisdale, 2021-00224 (La. 1/28/22), 347 So.3d 697; Benelli v. City of New
Orleans, 478 So.2d 1370 (La. App. 4 Cir. 1985); Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364
(La. 1984); Cappo v. Vinson Guard Service, Inc., 400 So.2d 1148 (La. App. 2 Cir. 1981)).
19 R. Doc. 149 at p. 3. See, Id. at pp. 3-4.
13

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circumstances show that they did not borrow Deputy Pitfield “to the extent that they
should be held vicariously liable for his actions.”20 Victory and Westgate also claim
that the cases cited by Plaintiffs in their Opposition brief are factually
distinguishable and, therefore, not controlling.21 Victory and Westgate further assert
that JPSO deputies held E.P. in a prone position after Deputy Pitfield was no longer
involved, and that the evidence cited by Plaintiffs does not isolate the effects of
Deputy Pitfield’s actions from those of the other deputies.22 As such, Victory and
Westgate contend that their evidence that E.P. was unharmed at the time Deputy
Pitfield ceased his involvement is undisputed.23
II.

LEGAL STANDARD
Summary judgment is appropriate where there is no genuine disputed issue as

to any material fact, and the moving party is entitled to judgment as a matter of
law.24 A party moving for summary judgment must inform the Court of the basis for
the motion and identify those portions of the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, that show that
there is no such genuine issue of material fact. 25 If the moving party carries its
burden of proof under Rule 56, the opposing party must direct the Court’s attention
to specific evidence in the record which demonstrates that the non-moving party can

R. Doc. 149 at p. 4 (citing Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969)). See, R. Doc. 149 at
pp. 4-7.
21 R. Doc. 149 at pp. 7-9.
22 R. Doc. 149 at pp. 1 & 9.
23 Id. at p. 9.
24 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
25 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
20

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satisfy a reasonable jury that it is entitled to a verdict in its favor. 26 This burden is
not satisfied by some metaphysical doubt as to alleged material facts, by unsworn
and unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of
evidence.27 Rather, Rule 56 mandates that summary judgment be entered against a
party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case and on which that party will bear the burden of proof at
trial.28 In resolving a motion for summary judgment, the Court must review the facts
and inferences in the light most favorable to the non-moving party, and the Court
may not evaluate the credibility of witnesses, weigh the evidence, or resolve factual
disputes.29
III.

ANALYSIS
The Complaint presents two theories under which Victory and Westgate could

be liable for the injuries of Plaintiffs and E.P.: (1) for their own negligence; and (2)
vicariously for the negligence of Deputy Pitfield.30 The Court will address each of
these theories in turn.
A. Victory and Westgate are entitled to summary judgment on
Plaintiffs’ claim of direct negligence.
Plaintiffs allege in their Complaint that Victory and Westgate are “directly
liable for [their] own corporate negligence as well as for the acts and omissions of its
servants, employees, borrowed employees, contractors and agents, including Pitfield

Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
28 Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
29 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
30 R. Doc. 1 at ¶¶ 27, 64, & 477.
26
27

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. . . .”31 In their Motion, Victory and Westgate assert that there is no factual allegation
giving rise to Plaintiffs’ conclusory allegation of direct negligence.32 Plaintiffs failed
to address this argument in their Opposition brief, and failed to identify any negligent
act for which Victory and Westgate could be held independently liable. As such,
Plaintiffs have not carried their burden to establish that Victory and Westgate owed
them a duty that was breached, and Plaintiffs’ claim for the independent negligence
of Victory and Westgate is dismissed with prejudice.
B. Victory and Westgate are not entitled to summary judgment
regarding their vicarious liability for Deputy Pitfield.
1. Victory and Westgate are not entitled to summary judgment on the
basis that Deputy Pitfield was an independent contractor.
Plaintiffs assert in their Complaint that Victory and Westgate are vicariously
liable for the actions and omissions of Deputy Pitfield on the basis that they were “the
special employer of Defendant Pitfield, and Defendant Pitfield was the borrowed
employee of [Victory and Westgate].”33 Although Victory and Westgate recognize that
Plaintiffs have alleged that Deputy Pitfield was “acting as an agent, servant, and
borrowed employee of Victory d/b/a Westgate Shopping Center,” 34 Victory and
Westgate argue that they are not liable for the acts and omissions of Deputy Pitfield
because he was an independent contractor, not an employee. Victory and Westgate

R. Doc. 1 at ¶ 27.
R. Doc. 138-2 at p. 3 (citing R. Doc. 138-1 at ¶ 5; R. Doc. 1, in globo & at ¶ 27).
33 R. Doc. 1 at ¶ 27. See, Id. at ¶¶ 63 & 477.
34 R. Doc. 138-2 at p. 2 (quoting R. Doc. 1 at ¶¶ 48-63).
31
32

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claim that Deputy Pitfield is an independent contractor because they did not exercise
control over his training, policy, methods, or actions.35
At the outset, the Court finds that Victory and Westgate’s Motion is not
responsive to the theory of vicarious liability asserted against them in the Complaint,
as it fails to mention, much less address, the borrowed employee doctrine set forth in
Plaintiffs Complaint.36 While the Motion could be denied on that basis alone, the
Court believes it appropriate to address the arguments made by Victory and Westgate
in their Motion. In doing so, the Court finds that Victory and Westgate have failed
to carry their burden of proving that it is undisputed that Deputy Pitfield was an
independent contractor. According to the Louisiana Supreme Court, “The single most
important factor to consider in deciding whether the employer-employee relationship
exists, for purposes of La. C.C. art. 2320, is the right of the employer to control the
work of the employee.”37 The Louisiana Supreme Court further held that, “The four
primary evidentiary factors considered in deciding whether such an employeremployee relationship exists relate to whether the alleged employer has the right or
duty, relative to the employee, of: (1) selection and engagement; (2) payment of wages;
(3) power of dismissal; and (4) power of control.” 38 No one factor is controlling;
instead, the totality of the circumstances must be considered.39

R. Doc. 138 at p. 1; R. Doc. 138-2 at pp. 3, 5, 6, & 9-11.
See R. Doc. 1 at ¶¶ 27 & 63.
37 Bolden v. Tisdale, 2021-00224 (La. 1/28/22), 347 So.3d 697, 708 (citing authority).
38 Id.
39 Id. (citation omitted).
35
36

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In contrast, “An independent contractor relationship presupposes a contract
between the parties, the independent nature of the contractor’s business, and the
nonexclusive means the contractor may employ in accomplishing the work.” 40
According to the Louisiana Supreme Court, it should appear that the contract calls
for specific piecework as a unit to be done according to the independent contractor’s
own methods, without being subject to the control and direction of his employer,
except as to the result of the services to be rendered.41 “It must also appear that a
specific price for the overall undertaking is agreed upon; that its duration is for a
specific time and not subject to termination or discontinuance at the will of either
side without a corresponding liability for its breach.”42 The Louisiana Supreme Court
has made clear that determining whether an individual is an independent contractor
or an employee requires consideration of the control over the work reserved by the
employer. 43 “In applying this test it is not the supervision and control which is
actually exercised which is significant; the important question is whether, from the
nature of the relationship, the right to do so exists.”44 Victory and Westgate recognize
this point in their Motion.45
Here, Plaintiffs have submitted evidence demonstrating that Victory and
Westgate had the right to, and did, exercise control over Deputy Pitfield. Specifically,

Id. at 709 (citing Hickman v. Southern Pacific Transport Company, 262 So.2d 385, 390 (La. 1972)).
Bolden, 347 So.3d at 709 (citing Hickman, 262 So.2d at 390).
42 Bolden, 347 So.3d at 709 (citing Hickman, 262 So.2d at 390-91).
43 Bolden, 347 So.3d at 709 (citing Hickman, 262 So.2d at 391).
44 Bolden, 347 So.3d at 709 (citing Hickman, 262 So.2d at 391).
45 R. Doc. 138-2 at p. 6 (quoting Bolden v. Tisdale, 2021-0024 (La. 1/28/22), 347 So.3d 697, 708) (“The
single most important factor to consider in deciding whether the employer-employee relationship
exists, for purposes of La. C.C. art. 2320, is the right of the employer to control the work of the
employee.”) (emphasis added).
40
41

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Deputy Pitfield and Victory and Westgate’s Fed. R. Civ. P. 30(b)(6) corporate
representative, Gina Christopher, testified that Victory and Westgate chose the times
and the location of Deputy Pitfield’s security detail, which was confined to the
Westgate Shopping Mall.46 Christopher also testified that Victory and Westgate had
the ability to cancel, terminate, or remove their security detail.47 The Court notes,
however, that Christopher further testified that Donald A. Canatella, Jr., a retired
reserve deputy with JPSO48 and the administrator of the security detail for Victory
and Westgate, selected and scheduled the officers who performed security detail for
Victory and Westgate.49 Deputy Pitfield and Deputy Canatella testified that Victory
and Westgate paid them directly for their security detail work and that the work was
performed on the Victory and Westgate property.50 Victory and Westgate point out
that Deputy Pitfield and Deputy Canatella testified that when working security
detail for Victory and Westgate, they followed the policies and procedures issued by
JPSO, and that Victory and Westgate did not provide any policies for them to follow
while working security detail.51 Victory and Westgate also point out that they did
not provide tools or equipment for their security detail other than a cell phone, and
that the officers used their own uniform, weapon, vehicle and tools.52

R. Doc. 142-2 at pp. 25 & 32-33; R. Doc. 138-5 at p. 9.
R. Doc. 142-2 at pp. 30-33.
48 R. Doc. 142-6 at p. 8.
49 R. Doc. 142-2 at pp. 21-22 & 28.
50 R. Doc. 142-3 at pp. 38 & 98. See, R. Doc. 142-6 at pp. 19 & 27-28 (when asked how he got paid for
his work at Victory and Westgate, Deputy Canatella testified that, “I fill out the time sheets, the
payroll sheets, and I submit them to pay - - submit them to Victory, and Victory sends us a check.”).
See also, R. Doc. 142-2 at pp. 19, 26-28, & 34.
51 R. Doc. 138-5 at pp. 2-3 & 12; R. Doc. 142-3 at pp. 32, 36-37 & 231; R. Doc. 142-6 at pp. 10-11.
52 R. Doc. 138-2 at p. 11 (citing R. Doc. 138-4 at pp. 7 & 8; R> Doc. 138-5 at pp. 4, 5, 6, 7 & 8).
46
47

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Based on the foregoing evidence, the Court finds that Plaintiffs have raised a
genuine issue of material fact regarding who exercised control over the work
performed by Deputy Pitfield while on security detail, which is the only factor of the
independent contractor analysis addressed by Victory and Westgate in their Motion.53
The Court therefore finds that Plaintiffs have raised a genuine dispute regarding
whether Deputy Pitfield was an independent contractor.

As such, Victory and

Westgate have failed to show that they are entitled to judgment as a matter of law
on the basis that Deputy Pitfield was an independent contractor at the time he
performed security detail for Victory and Westgate.
2. Victory and Westgate are not entitled to summary judgment on the
basis that Deputy Pitfield was not a borrowed employee.
In their Reply brief, Victory and Westgate assert that there are no substantial
differences between the borrowed employee analysis and the independent contractor
analysis vis-à-vis an employer’s vicarious liability, and further argue that Deputy
Pitfield was not a borrowed employee because they did not exercise sufficient control
over him.54 In Ruiz v. Shell Oil Co., the Fifth Circuit set forth the following nine
factors that courts should consider when determining whether a person qualifies as
a borrowed employee:
1. Who has control over the employee and the work he is performing,
beyond mere suggestion of details or cooperation?
2. Whose work is being performed?
3. Was there an agreement, understanding, or meeting of the minds
between the original and borrowing employer?
4. Did the employee acquiesce in the new work situation?

53
54

See, R. Doc. 138-2 at pp. 5-11.
R. Doc. 149.

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5. Did the original employer terminate his relationship with the
employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?55
The Fifth Circuit has made clear that, “Although no single one of these factors is
decisive, the first is the most critical.” 56 Additionally, “[t]he central question in
borrowed servant cases is whether someone has the power to control and direct
another person in the performance of his work.”57 The Fifth Circuit has long noted
that, “a careful distinction must be made between authoritative direction and control,
and mere suggestion as to details or the necessary co-operation, where the work
furnished is part of a larger undertaking.”58 Further, a borrowing employer “gives
direct orders to its borrowed servant.”59
Turning to the first factor, Christopher, the corporate representative of Victory
and Westgate, testified that when Victory and Westgate purchased the shopping
center from the previous owner in 2006, “the security came along with it.”60 While
there was no written or oral contract for the security services, Victory and Westgate
received “[t]he same services that were being provided to the previous owner,” and
they expected those services to include patrolling the property and ensuring the

Mays v. Director, Office of Workers’ Compensation Programs, 938 F.3d 637, 641-42 (5th Cir. 2019)
(quoting Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977) (citing Ruiz, 413 F.2d 310, 312-13
(5th Cir. 1969)) (internal quotation marks omitted).
56 Mays, 938 F.3d at 642 (citing Hall v. Diamond M Co., 732 F.2d 1246, 1249 (5th Cir. 1984)).
57 Mays, 938 F.3d at 642 (quoting Hebron v. Union Oil Co. of Cal., 634 F.2d 245, 247 (5th Cir. 1981))
(internal quotation marks omitted).
58 Mays v. Director, Office of Workers’ Compensation Programs, 938 F.3d 637, 643-44 (5th Cir. 2019)
(quoting Ruiz v. Shell Oil Co., 413 F.2d 310, 313 (5th Cir. 1969)) (internal quotation marks omitted).
59 Mays, 938 F.3d at 644 (citing authority).
60 R. Doc. 142-2 at pp. 14 & 41.
55

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safety of patrons, tenants, and the shopping center. 61 Christopher testified that
Victory and Westgate selected the times and confined the location of the security
patrol to the Westgate Shopping Mall, but they did not provide any policies that the
security detail had to comply with.62 Christopher further testified that Victory and
Westgate had the ability to cancel, terminate, or remove the security officers,
including Deputy Pitfield.63
Deputy Pitfield testified that he was supposed to follow the JPSO policies and
procedures, including policies and procedures regarding public assignments, when
performing security detail.64 Deputy Pitfield also testified that JPSO did not impose
any additional training requirements for him to perform security detail.65 Deputy
Canatella likewise testified that the Public Assignment Policy for JPSO applied to
the security detail services provided to Victory and Westgate.66 Deputy Canatella
further testified that he sometimes went to the Westgate Shopping Center with a
sign-in sheet to ensure that officers, including Deputy Pitfield, showed up for their
security detail but he did not testify to giving any other directions to Pitfield in the
performance of the detail.67
The evidence before the Court shows that Victory and Westgate owned the
shopping center where Deputy Pitfield performed security detail, they set the hours
and location of that work, they paid him directly, and they had the ability to cancel,

Id. at pp. 14-15 & 19. See also, Id. at pp. 29 & 43-44.
R. Doc. 142-2 at pp. 25 & 32-33; R. Doc. 138-5 at p. 9.
63 R. Doc. 142-2 at pp. 30-33.
64 R. Doc. 138-5 at pp. 2-3 & 12; R. Doc. 142-3 at pp. 36-37 & 231.
65 R. Doc. 142-3 at p. 32.
66 R. Doc. 142-6 at pp. 10-11.
67 R. Doc. 142-6 at pp. 29 & 40.
61
62

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terminate, or remove Deputy Pitfield. The Court therefore rejects as baseless Victory
and Westgate’s assertion that they “exercised no right of control over Defendant
Pitfield” and that Deputy Pitfield “was given direction, entirely from Jefferson Parish
Sheriff’s Office (JPSO).” 68 While there is evidence before the Court showing that
Deputy Pitfield relied upon the policies and training he received from JPSO while
working security detail and that Deputy Canatella selected the officers who worked
the security detail,69 Victory and Westgate have not directed the Court to evidence
showing that JPSO exercised control over Deputy Pitfield’s security detail work
beyond the JPSO policies and procedures that he followed.

The Court finds that

genuine issues of material fact exist regarding who exercised control over Deputy
Pitfield and the work he performed while working security detail for Victory and
Westgate.70 As such, the first factor, who has control over the employee, is neutral
regarding the existence of a borrowed employee relationship.
Regarding the second factor, whose work is being performed, the parties agree
that Deputy Pitfield’s security detail was performed for the benefit of Victory and
Westgate. 71 Plaintiffs have also provided evidence showing that while working
security detail, officers were not allowed to do work for other people.72 As such, this
factor weighs in favor of a borrowed employee relationship.

R. Doc. 149 at p. 4 (citing R. Doc. 138-2; R. Doc. 142 at p. 8).
R. Doc. 142-6 at pp. 14-15.
70 Although this dispute precludes summary judgment, the Court will consider the remainder of the
factors. See, Delozier v. S2 Energy Operating, LLC, 498 F. Supp. 3d 884, 895-96 (E.D. La. 2020)
(finding that material facts in dispute regarding who had control over the employee and whether the
conduct of the parties altered the terms of the Master Service Agreement between the two employers
precluded summary judgment on the issue of borrowed employee status).
71 R. Doc. 142 at pp. 8-9 (citing R. Doc. 142-2 at p. 34); R. Doc. 149 at pp. 4-5
72 R. Doc. 142-2 at p. 20; R. Doc. 142-3 at p. 99; R. Doc. 142-6 at pp. 27-28.
68
69

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The third factor considers whether there was an agreement, understanding, or
meeting of the minds between the original and the borrowing employer. The parties
seem to agree that there was an agreement between Victory and Westgate and
JPSO’s special detail coordinator to have JPSO deputies provide security detail.73
While Victory and Westgate discount this factor because the agreement did not
include the words “borrow” or “loan,”74 Victory and Westgate ignore clear authority,
including the case they cite in support of their position, stating that it is the parties’
actions, rather than the language of the agreement, that determines whether
someone is a borrowed employee. 75 Nevertheless, there is no evidence before the
Court that there was an agreement between JPSO and Victory and Westgate that
Deputy Pitfield would become Victory and Westgate’s employee. This factor therefore
weighs against a borrowed employee relationship.
Turning to the fourth factor, whether the employee acquiesced in the new
work situation, the Fifth Circuit has clarified that the question is not whether the
individual agreed to become a borrowed employee, but whether he was aware of his
work conditions and chose to continue working in them.76 Plaintiffs assert that this
factor weighs in favor of a borrowed employee relationship because Deputy Pitfield

R. Doc. 142 at p. 9 (citing R. Doc. 142-2 at pp. 17-18 & 36); R. Doc. 149 at p. 5.
R. Doc. 149 at p. 5 (citing Musa v. Litton-Avondale Industries, Inc., 10-627 (La. App. 5 Cir. 3/29/11),
63 So.3d 243, 248).
75 Musa, 63 So.3d at 247-47 (citing Brown v. Union Oil Co. of Cal., 984 F.2d 674, 678 (5th Cir. 1993))
(“[T]hat court concluded that that type of provision did not automatically prevent borrowed-employee
status from arising. Instead, the parties’ actions in executing the contract could impliedly modify or
waive the express provision.”) (internal citations omitted).
76 Garner v. Pontchartrain Partners, LLC, Case No. 22-30420, 2023 WL 1873089 (5th Cir. Feb. 9, 2023)
(quoting Mays v. Director, Office of Workers’ Compensation Programs, 938 F.3d 637, 645 (5th Cir.
2019)) (internal quotation marks omitted).
73
74

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chose to do security detail.77 Victory and Westgate assert that this fact is irrelevant
because it is “relevant more to Workers’ Compensation cases.” 78 Based upon the
undisputed evidence presented by Plaintiffs, the Court finds that Deputy Pitfield was
aware of his working conditions at Victory and Westgate and voluntarily continued
to work security detail for them.79 As such, this factor supports a borrowed employee
relationship.
The fifth factor asks whether the original employer terminated his relationship
with the employee. Plaintiffs assert that Deputy Pitfield remained a reserve deputy
for JPSO when he worked security detail for Victory and Westgate, and that Victory
and Westgate simply borrowed him from JPSO to have a uniformed officer provide
security and police presence on the property.80 Victory and Westgate concede that
JPSO did not terminate its contract with Deputy Pitfield, but argue that this factor
should weigh against vicarious liability on their part because “if Defendant Pitfield
remained a reserve deputy for JPSO rather than terminating that relationship, it is
less likely that Moving Defendants should assume vicarious liability for his actions.”81
The Fifth Circuit has held that, “This factor does not require a lending
employer to sever completely its relationship with the employee, because such a
requirement would effectively eliminate the ‘borrowed employee’ doctrine.”82 Victory

R. Doc. 142 at p. 9 (citing R. Doc. 142-3 at pp. 27 & 35).
R. Doc. 149 at p. 5.
79 See, Mays, 938 F.3d at 645 (citing Fontenot v. Mobil Oil Expl. & Producing Se., Inc., 997 F.2d 881
(5th Cir. 1993) (“[T]his court considers [a worker’s] acceptance of a job that regularly sent him to
temporary work places as acquiescence to each of those employment situations.”))
80 R. Doc. 142 at p. 9 (citing R. Doc. 142-3 at p. 24).
81 R. Doc. 149 at p. 5 (emphasis in original).
82 Melancon v. Amoco Production Co., 834 F.2d 1238, 1246 (5th Cir. 1988) (citing Capps v. N.L. BaroidNL Industries, 784 F.2d 615, 617-18 (5th Cir. 1986)).
77
78

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and Westgate make this argument in their Reply brief. Instead, “The emphasis when
considering this factor should focus on the lending employer’s relationship with the
employee while the borrowing occurs.”83 The undisputed evidence before the Court
shows that JPSO did not terminate its relationship with Deputy Pitfield when he
performed security detail for Victory and Westgate. As to the relationship between
JPSO and Deputy Pitfield while he was performing security detail for Victory and
Westgate, Deputy Canatella testified that he selected the JPSO officers who worked
security detail for Victory and Westgate84 and that JPSO’s Public Assignment Policy
applied to that security detail. 85 Deputy Pitfield likewise testified that he was
required to follow JPSO’s policies and procedures regarding public assignments while
performing security detail,86 but that JPSO did not impose any additional training
requirements for him to perform security detail.87 Deputy Canatella further testified
that he sometimes went to the shopping center with a sign-in sheet to ensure that
officers, including Deputy Pitfield, showed up for their security detail.88 The evidence
before the Court indicates that JPSO maintained its relationship with Deputy
Pitfield and exercised nominal control over him while he worked security detail for
Victory and Westgate. As such, this factor weighs in favor of a borrowed employee
relationship.

Melancon, 834 F.2d at 1246 (quoting Capps, 784 F.2d at 617-18) (internal quotation marks
omitted).
84 R. Doc. 142-6 at pp. 10 & 13-17.
85 Id. at pp. 10-11.
86 R. Doc. 142-3 at pp. 36-37.
87 Id. at p. 32.
88 R. Doc. 142-6 at p. 40.
83

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The sixth factor, who furnished tools and the place for performance, is mixed.
Plaintiffs have presented evidence that Victory and Westgate determined the location
of the security detail and provided their security detail officers a cell phone,89 but
Plaintiffs concede that JPSO provided the officers’ uniform, gun and vehicle.90 As
such, the Court finds that this factor weighs against a borrowed employee
relationship.
The seventh factor asks whether the new employment was over a considerable
length of time.

Plaintiffs argue that this factor weighs in favor of a borrowed

employee relationship because Deputy Pitfield worked security detail for Victory and
Westgate for approximately four years.91 Victory and Westgate argue that this factor
is irrelevant because workers’ compensation is not at issue.92 While the Fifth Circuit
has recognized that “scattershot findings abound” regarding what length of time
suffices for borrowed employee status,93 the Fifth Circuit has also held that seven
years was a considerable amount of time94 and that a year-and-a-half weighed in
favor of finding borrowed employee status.95 The Court therefore finds that Deputy
Pitfield’s approximately four years of working security detail constitutes a
considerable length of time, and that the seventh factor weighs in favor of borrowed
employee status.

R. Doc. 142-2 at pp. 25-26; R. Doc. 142-6 at pp. 25-26; R> Doc. 142-3 at pp. 96-97.
R. Doc. 138-4 at pp. 7-8; R. Doc. 142-2 at pp. 43-44; R. Doc. 142-6 at pp. 20-21.
91 R. Doc. 142 at pp. 9-10 (citing R. Doc. 142-3 at pp. 100-101).
92 R. Doc. 149 at p. 6
93 Mays v. Director, Office of Workers’ Compensation Programs, 938 F.3d 637, 646 (5th Cir. 2019).
94 Melancon v. Amoco Production Co., 834 F.2d 1238, 1246 (5th Cir. 1988).
95 U.S. Fire Ins. Co. v. Miller, 381 F.3d 385, 390 (5th Cir. 2004).
89
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Turning to the eighth factor, who had the right to discharge the employee, the
undisputed evidence before the Court shows that Victory and Westgate had the right
to terminate Deputy Pitfield’s security detail.96 Victory and Westgate concede that
they had the right to discharge Deputy Pitfield from their security detail, but claim
that, “This factor is not determinative.”97 While Victory and Westgate are correct
that this factor is determinative, the Court finds that it weighs in favor of a borrowed
employee relationship.
The ninth and final factor, who has the obligation to pay the employee, likewise
weighs in favor of finding a borrowed employee relationship.

Plaintiffs have

presented evidence that Deputy Pitfield was paid by Victory and Westgate directly
via check.98 Victory and Westgate concede that they paid Deputy Pitfield’s wages for
security detail, but contend that this factor is not determinative of borrowed employee
status.99 Again, while not determinative, the Court finds that this factor weighs in
favor of a borrowed employee relationship.
In sum, the Court finds that six factors weigh in favor of a borrowed employee
relationship, two factors weigh against a borrowed employee relationship, and one
factor—and arguably the most important one—is neutral. The Court therefore
agrees with Plaintiffs that a reasonable jury could conclude that Deputy Pitfield was
the borrowed employee of Victory and Westgate. As such, Victory and Westgate have

R. Doc. 142-2 at pp. 32-33; R. Doc. 142-3 at p. 100.
R. Doc. 149 at p. 6 (citing Ruiz v. Shell Oil Co., 413 F.2d 310, 313 n.7 (5th Cir. 1969)).
98 R. Doc. 142 at p. 10 (citing R. Doc. 142-3 at p. 38). See, R. Doc. 142-6 at p. 19 (when asked how he
got paid for his work at Victory and Westgate, Deputy Canatella testified that, “I fill out the time
sheets, the payroll sheets, and I submit them to pay - - submit them to Victory, and Victory sends us
a check.”).
99 R. Doc. 149 at pp. 6-7.
96
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failed to carry their burden of proving that they are entitled to judgment as a matter
of law on the basis that Deputy Pitfield is not a borrowed employee, and their Motion
is denied as to that request.
C. Victory and Westgate are not entitled to summary judgment on the
basis that Deputy Pitfield’s actions did not cause E.P.’s death.
Victory and Westgate further assert, in the alternative, that if Deputy Pitfield
is deemed their employee, summary judgment is warranted because the undisputed
evidence shows that Deputy Pitfield did not cause E.P.’s injuries.100 Relying upon
Plaintiffs’ own testimony, Victory and Westgate claim it is undisputed that when
Deputy Pitfield’s involvement in the underlying incident ceased, he did not have E.P.
in a chokehold and E.P. was calm and “thus unharmed.” 101 Plaintiffs argue that
whether Deputy Pitfield’s restraint of E.P. caused E.P.’s injuries “is very much
disputed, considering that the Jefferson Parish Coroner’s Office found that prone
positioning was a ‘contributing cause’ of E.P.’s death.” 102 Plaintiffs assert that
Victory and Westgate cite no authority for the premise that someone who is calm
must necessarily be unharmed, and point out that in their Answer, Victory and
Westgate denied that E.P. was calm when Deputy Pitfield was on top of him. 103
Plaintiffs further assert that the 308-pound Deputy Pitfield placed E.P. facedown, in
a prone position, and sat on top of him,104 and Dr. Dana Troxclair of the Jefferson

R. Doc. 138 at p. 1; R. Doc. 138-2 at pp. 1 & 11-12.
R. Doc. 138-2 at pp. 11-12 & 13 (citing R. Doc. 138-6 at pp. 2 & 3; R. Doc. 138-7 at p. 2; R. Doc.
138-5 at pp. 10-11).
102 R. Doc. 142 at p. 2 (citing R. Doc. 142-4 at p. 2).
103 R. Doc. 142 at p. 11 (citing R. Doc. 1 at ¶ 168; R. Doc. 10 at p. 3).
104 R. Doc. 142 at pp. 11-12 (citing R. Doc. 1 at ¶ 76).
100
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Parish Coroner’s Office testified during a deposition that E.P. “most likely” would not
have died if the JPSO officers had not placed him in the prone position.105 Plaintiffs
also assert that their expert, Dr. Kris Sperry, will testify at trial that E.P. showed
evidence of oxygen deficiency while Deputy Pitfield was on top of him,106 and that
their expert Jeff Noble will opine that E.P.’s movements while Deputy Pitfield was
on him were “likely being done to help the subject to breathe.”107
In response, Victory and Westgate argue that Plaintiffs failed to submit
evidence to dispute their own evidence that E.P. was unharmed at the time that
Deputy Pitfield ceased his involvement in the restraint of E.P. 108 Victory and
Westgate contend that Plaintiffs’ evidence only addresses the actions of the JPSO
officers as a group without isolating the result of Deputy Pitfield’s conduct.109 Thus,
Victory and Westgate argue that their evidence, which isolates the result of Deputy
Pitfield’s actions, is undisputed.110
The Court finds that Plaintiffs have submitted evidence to show that genuine
issues of material fact exist regarding whether Deputy Pitfield’s actions caused E.P.’s
injuries, including his death.

Victory and Westgate do not dispute Plaintiffs’

allegation that Deputy Pitfield placed E.P. in a prone position and sat on top of him,111
and Plaintiffs have provided evidence showing that prone positioning was a

R. Doc. 142 at p. 12 (quoting R. Doc. 142-9 at pp. 58 & 64-65).
R. Doc. 142 at p. 12 (citing R. Doc. 142-7).
107 R. Doc. 142 at p. 12 (quoting R. Doc. 142-8 at ¶ 61).
108 R. Doc. 149 at p. 9.
109 Id. (citing R. Doc. 142 at p. 12).
110 R. Doc. 149 at p. 9.
111 R. Doc. 142 at pp. 11-12 (citing R. Doc. 1 at ¶ 76).
105
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contributing factor to E.P.’s death.112 Plaintiffs have also provided evidence that Dr.
Troxclair, who performed E.P.’s autopsy, 113 testified during a deposition that E.P.
“most likely” would not have died if the JPSO officers had “not had him in the prone
position.”114 The Court finds that this evidence is sufficient to raise a genuine dispute
regarding the cause of E.P.’s death. As such, Victory and Westgate have failed to
carry their burden of proving that they are entitled to judgment as a matter of law on
the basis that Deputy Pitfield’s actions did not cause E.P.’s injuries.
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants Victory Real

Estate Investments LA, LLC’s and Westgate Investors NO, LLC’s d/b/a Westgate
Shopping Center Motion for Summary Judgment 115 is GRANTED in part and
DENIED in part.

The Motion is GRANTED to the extent that Victory and

Westgate seek summary judgment on Plaintiffs’ claim that they are liable for their
direct negligence, and that claim is DISMISSED with prejudice. The Motion is
otherwise DENIED.
New Orleans, Louisiana, May 19, 2023.
______________________________
WENDY B. VITTER
United States District Judge

R. Doc. 142-4 at p. 2; R. Doc. 142-9 at p. 57.
R. Doc. 142-9 at pp. 23-26.
114 Id. at pp. 58 64-65.
115 R. Doc. 138.
112
113