CASES (2022)

Beaumont v. Vanguard Logistics Servs. (USA), Inc.

United States District Court for the District of New Jersey

July 19, 2022, Decided; July 19, 2022, Filed

Civ. No. 2:22-cv-02715 (WJM)

Reporter

2022 U.S. Dist. LEXIS 127632 *; 2022 WL 2816945

GARY BEAUMONT, Plaintiff, v. VANGUARD LOGISTICS SERVICES (USA), INC. and JOHN DOES 1-10 (Fictitious Name) and ABC COMPANIES 1-10 (Fictitious Name), Defendants.

Core Terms

forum selection clause, transport, maritime, admiralty, adhesion contract, district court, cargo, contracted, carriage, bill of lading, factors

Counsel: [*1] For GARY BEAUMONT, Plaintiff: STEVEN D. ROTHBLATT, LEAD ATTORNEY, LAW OFFICES OF ROTHBLATT LAW, LLC, ISELIN, NJ.

For VANGUARD LOGISTICS SERVICES (USA), INC., Defendant: GEORGE N. STYLIADES, LAW OFFICES OF GEORGE N. STYLIADES, MOORESTOWN, NJ.

Judges: WILLIAM J. MARTINI, UNITED STATES DISTRICT JUDGE.

Opinion by: WILLIAM J. MARTINI

Opinion

In this action for property losses and damages to a container shipment transported from Sydney, Australia to Ballston Spa, New York, Defendant Vanguard Logistics Services (USA), Inc. (“VLS” or “Defendant”) moves for transfer of venue pursuant to 28 U.S.C. § 1404(a) to the District Court for the Southern District of New York. ECF No. 6. The Court decides the matter without oral argument. Fed, R. Civ. P. 78(b). For the reasons stated below, Defendant’s motion to transfer venue is granted.

I. BACKGROUND

Plaintiff Gary Beaumont (“Beaumont” or “Plaintiff’), a resident of New York, contracted with VLS for the carriage of cargo containing a motorcycle, a bicycle, and other personal items, from Australia to the United States. See Compl., Count One, ¶ 3, ECF No. 1. The contract of carriage between VLS and Beaumont is reflected in a Bill of Lading dated February 5, 2021 issued to Plaintiff (“B/L”) for the transport by ship of one crate [*2] from Sydney, Australia, to Ballston Spa, New York. See Decl. of George P. Hassapis in Supp. of Mot. to Transfer (“Hassapis Decl.”) at ¶ 6; B/L attached as Ex. 2 to Hassapis Decl., ECF No. 6-3. Plaintiff alleges that the crate was shipped from Sydney to Los Angeles and then transported by rail to Carteret, NJ where it was damaged while in VLS’ custody at its warehouse prior to clearing customs and delivery of the crate to him. See Compl., ¶¶ 5, 7; Pl.’s Opp’n Br. at 4.

On April 7, 2022, Plaintiff filed suit in New Jersey state court claiming negligence and violations of the New Jersey Consumer Fraud Act, N.J.S.A. § 56:8-2 (“CFA”). Subsequently, Defendant removed the action on the basis of 28 U.S.C. § 1332 diversity jurisdiction and 28 U.S.C. § 1441(b) maritime jurisdiction.

Defendant now seeks transfer of this matter to the Southern District of New York pursuant to a forum selection clause in the B/L that states that unless VLS voluntarily submits to or waives jurisdiction, 141 disputes in any way relating to this Bill of Lading shall be determined by the United States District Court for the Southern District of New York to the exclusion of the jurisdiction of any other courts in the United States or the courts of any other country.” B/L, ¶ 21(b).

In opposing transfer, [*3] Plaintiff submits that: 1) no admiralty jurisdiction exists because damage to the cargo occurred on land upon rail transport to Carteret, NJ; 2) the standard terms on the back of the B/L, including the forum selection clause, are unenforceable contracts of adhesion; and 3) the forum selection clause and the United States Carriage of Goods by Sea Act (“COGSA“), 46 U.S.C. § 30701 et seq., (effective Oct. 6, 2006), are inapplicable because the cargo was damaged during transport on land by means other than what was expressly provided for in the B/L. These contentions will be addressed in turn.

II. DISCUSSION

A. Admiralty Jurisdiction

At the outset, Plaintiff disputes that admiralty jurisdiction exists because the cargo was damaged on land. However, the determination of admiralty jurisdiction does not turn on where the loss occurred. Rather, the dispositive inquiry rests on “‘the nature and character of the contract,’ and the true criterion is whether it has ‘reference to maritime service or maritime transactions.'” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 24, 125 S. Ct. 385, 160 L. Ed. 2d 283 (2004) (citing North Pacific S.S. Co. v. Hall Brothers Marine Railway & Shipbuilding Co., 249 U.S. 119, 125, 39 S. Ct. 221, 63 L. Ed. 510 (1919)); Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603, 611, 111 S. Ct. 2071, 114 L. Ed. 2d 649 (1991) (“[T]he trend in modern admiralty case law … is to focus the jurisdictional inquiry upon whether the nature of the transaction was maritime.”). As explained by the Supreme Court, “so long [*4] as a bill of lading requires substantial carriage of goods by sea, its purpose is to effectuate maritime commerce—and thus it is a maritime contract. Its character as a maritime contract is not defeated simply because it also provides for some land carriage.” Kirby, 543 U.S. at 27.

Here, the B/L required performance substantially by sea. That the crate’s transport included some journey on land that was not specifically described in the B/L does not defeat the maritime nature of the contract. See, e.g., id. at 24 (finding contract’s primary objective was transportation of goods by sea from Australia to East Coast of United States and explaining that final leg of journey to Huntsville, AL by rail did not “alter the essentially maritime nature of the contracts.”). Indeed, “the fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce. … Maritime commerce is often inseparable from some land-based obligations.” Id. at 25 (internal quotes and citation omitted). Thus, as here, “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation.”¹ Kirby, 543 U.S. at 22-23; Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 590, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991) (applying federal law to enforceability of forum selection clause in admiralty [*5] case).²

B. Motion to Transfer Standard

28 U.S.C. § 1404(a) provides: “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” This section applies to admiralty actions despite the statutory language referring to “civil” actions. Buckeye Pennsauken Terminal LLC v. Dominique Trading Corp., 150 F. Supp. 3d 501, 505 (E.D. Pa. 2015); see, e.g., Cont’l Grain Co. v. Barge FBL-585, 364 U.S. 19, 25-27, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960) (applying § 1404 in admiralty action).³ The district court has wide discretion in this decision. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir.1973). “In deciding a § 1404(a) motion, a court is not limited to the pleadings, and may consider affidavits and other evidence.” Roller v. Red Payments L.L.C., No. 18-1834, 2019 U.S. Dist. LEXIS 135911, 2019 WL 3802031, at *4 (E.D. Pa. Aug. 12, 2019); see also Plum Tree, Inc., 488 F.2d at 756-57.

Typically, in a case where there is no forum selection clause, a court balances “the three enumerated factors in §1404(a) (convenience of the parties, convenience of the witnesses, or interests of justice)” along with a non-exhaustive list of various private and public interest factors. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). In contrast, where there is a valid and enforceable forum selection clause, the parties’ bargained for agreement as to the most proper forum should be given “controlling weight in all but the most exceptional cases.” [*6] Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 63, 134 S. Ct. 568, 187 L. Ed. 2d 487 (2013). Additionally, in a § 1404(a) analysis where a valid forum selection clause is present, the plaintiffs choice of forum merits no weight and the parties’ private interests⁴ should be weighed entirely in favor of the preselected forum. Id. at 63-66. In short, only public interest factors⁵ remain to be balanced and “[i]n all but the most unusual cases, therefore, “the interest of justice” is served by holding parties to their bargain,” Id. at 66. Although the party seeking a § 1404(a) transfer usually bears the burden of persuasion, see In re McGraw-Hill Global Educ. Holdings LLC, 909 F.3d 48, 57 (3d Cir. 2018), where there is a valid forum selection clause, the party seeking to avoid the clause bears the burden of showing that public interest factors “overwhelmingly disfavor a transfer.” Atl. Marine Const. Co., 571 U.S. at 66; Jumara, 55 F.3d at 879.

Because the existence of a valid forum selection clause changes the § 1404(a) calculus, the Court must first examine whether the forum selection clause at issue is enforceable. Federal law applies to this inquiry since, as discussed above, the interpretation of a maritime contract is governed by federal law.⁶

C. Forum Selection Clause

a. Contract of Adhesion

Generally, a federal court sitting in admiralty should enforce forum selection clauses as prima facie valid absent a showing by the resisting party that to do so would [*7] be “unreasonable” under the circumstances. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972); In re: Howmedica Osteonics Corp., 867 F.3d 390, 397 (3d Cir. 2017) (noting courts must honor a valid forum selection clause “in all but the most unusual cases.”). “A forum selection clause is ‘unreasonable’ where the defendant can make a ‘strong showing’ [], either that the forum thus selected is ‘so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court,’ [], or that the clause was procured through ‘fraud or overreaching,’ [].” Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1219 (3d Cir. 1991) (citing M/S Bremen, 407 U.S. at 15, 18); CBJ, Inc. v. M/V “HANJIN HONG KONG”, No. CIV. 99-4925, 2000 U.S. Dist. LEXIS 20288, 2000 WL 33258660, at *2 (D.N.J. Sept. 22, 2000).

Despite Plaintiffs claims otherwise, a forum selection clause is presumed valid even when it is part of an adhesion contract. See Carnival Cruise, 499 U.S. 585 (upholding non-negotiated forum selection clause in a “form ticket contract”); Fireman’s Fund Ins. Co. v. M.V. DSR Atlantic, 131 F.3d 1336, 1338 (9th Cir.1997) (finding that whether or not the bill of lading was contract of adhesion was “of no relevance” in determining whether forum selection clause should be enforced); Union Steel Am. Co. v. M/V Sanko Spruce, 14 F. Supp. 2d 682, 686-87 (D.N.J. 1998) (collecting cases where courts have rejected argument that there is no presumption of validity because forum selection clause is part of adhesion contract); Vitricon, Inc. v. Midwest Elastomers, Inc., 148 F. Supp. 2d 245, 248 (E.D.N.Y.2001) (“[c]ourts have consistently rejected the argument that forum selection clauses contained in pre-printed contracts are unenforceable.” (citation omitted)).

Moreover, Plaintiff has not demonstrated, [*8] or even alleged, that litigating in New York would be so gravely difficult and inconvenient as to deprive him of his day in court, or that the forum selection clause was the result of fraud. Instead, Plaintiff argues that the B/L is unenforceable because it is fundamentally unfair. See Carnival Cruise, 499 U.S. at 595 (“forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness”). In Carnival, the Court found no evidence of fraud or overreaching and no indication of bad faith that the cruise ship set Florida as the selected forum to discourage passengers from pursuing legitimate claims given that Florida was the location of petitioner’s principal place of business and the port of departure and return for many of its cruises, Id. at 595. Citing Carnival, Plaintiff suggests that the forum selection of New York is likewise unfair because Defendant’s “head office” is in Long Beach, CA and none of Defendant’s offices are located in New York. Plaintiff, however, provides no evidence to support such assertions. In any event, the Court declines to conclude that the preselection of a New York forum is fundamentally unfair when Plaintiff is a resident of New York and the cargo at issue was [*9] contracted to be delivered to New York.

Next, Plaintiff also maintains that under Berkson v. Gogo LLC, 97 F. Supp, 3d 359 (E.D.N.Y. 2015), the forum selection clause at issue is a “material alteration” that required specific consent and that a “reasonably prudent person” would not have been aware of the forum selection clause located on the back of the B/L. However, Plaintiffs reliance on Berkon is misplaced. Apart from not being binding on this Court, Berkon is inapposite. At issue was a forum selection clause that was part of an electronic contract of adhesion court that required the consumer to click on a “terms of use” hyperlink and scroll down to the seventh page of the document to find the choice of law and forum selection clause. Id. at 375. In that case, “[w]here the assent to terms of a contract is ‘largely passive,’ as is often the case with electronic contracts of adhesion,” the court noted that “‘the contract-formation question will often turn on whether a reasonably prudent offeree would be on [inquiry] notice of the term[s] at issue.'” Id. at 393 (citation omitted). In contrast, here the B/L here is not an electronic contract of adhesion that raises issues of sufficient notice.⁷ Rather, a copy of the B/L, which contained the forum selection clause [*10] on the reverse side, was provided to Plaintiff prior to the container’s loading in Sydney. See Hassapis Decl., ¶ 6, 8, 9.

In sum, Plaintiff has failed to show that the forum selection clause should not be enforced as prima facie valid because it is included in a contract of adhesion or unreasonable or unfair.⁸

b. Damage on Land

Plaintiff insists that he is not bound by the forum selection clause because damage to his cargo did not occur during the intermodal carriage from Australia to New York, but on land in Carteret, NJ during a portion of the journey that was not expressly identified in the B/L. Therefore, Plaintiff characterizes his claim as a state law claim for negligent bailment.

The B/L, however, expressly provides for “through” transportation:

When either the Place of Receipt or Place of Delivery set forth herein is an inland point or place other than the Port of Loading (Through Transportation basis), the Carrier will procure transportation to or from the sea terminal and such inland point(s) or place(s)…

B/L, ¶ 5. By its terms, the B/L is a “through” bill of lading, that is, a contract for “transportation across oceans and to [an] inland destination[] in a single transaction.” [*11] Kirby, 543 U.S. at 25-26. Although Plaintiff complains that the B/L did not specifically identify the land route from the port of entry, the carriage of cargo from Sydney to Ballston invariably had to include transport by land in the final leg because Ballston Spa, NY is an inland point located about 30 miles north of Albany, NY. Hence land transport was necessary to complete performance of the contract. See also B/L, ¶ 12 (permitting Carrier to “use any means of transport (water, land and/or air) or storage” at any time and without notice to consignee). As such, the occurrence of damage while on land does not render the forum selection clause unenforceable.⁹

D. 28 U.S.C. §1404(a) Analysis

Because the B/L contains an enforceable forum selection clause, the Plaintiff’s choice of forum merits no weight and the parties’ private interests weigh entirely in favor of the preselected forum. Furthermore, Plaintiff has not argued that any of the public interest factors that remain to be balanced weigh against transfer, nor has Plaintiff shown that this is such an unusual or exceptional case that the parties’ preselected forum should be disregarded. Thus, the parties’ contracted forum – the Southern District of New York — must [*12] be given controlling weight as the proper forum.

III. CONCLUSION

For the reasons discussed above, Defendant’s motion to transfer this action to the United States District Court for the Southern District of New York is granted. An appropriate Order follows.

/s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.

Date: July 19, 2022

ORDER

WILLIAM J. MARTINI, U.S.D.J.:

This matter comes before the Court on the motion of Defendant Vanguard Logistics Services (USA), Inc. (“VLS”) for transfer of venue pursuant to 28 U.S.C. § 1404(a) to the District Court for the Southern District of New York. ECF No. 6. For the reasons set forth in the accompanying opinion, and for good cause shown,

IT IS on this 19th day of July 2022, ORDERED that Defendant VLS’s motion for transfer of venue is GRANTED; and

IT IS FURTHER ORDERED that this matter is transferred to the United States District Court for the Southern District of New York.

/s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.

End of Document

¹Plaintiff has not argued that this dispute is inherently local. Compare Kirby, 543 U.S. at 28 (applying federal law where no specific Australian or state interest defeated federal interest in uniformity of general maritime law) with Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 313-14, 75 S. Ct. 368, 99 L. Ed. 337 (1955) (applying state law to maritime insurance contract due to state’s broad regulatory power over insurance industry).

²Even absent admiralty jurisdiction, in diversity cases, “the effect to be given a contractual forum selection clause” is determined by federal not state law because questions of venue and the enforcement of a forum selection clause is a procedural, rather than substantive, inquiry. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995); Collins On behalf of herself v. Mary Kay, Inc., 874 F.3d 176, 181-82 (3d Cir. 2017) (explaining that enforceability of forum selection clause (whether compelling compliance is unreasonable or clause resulted from fraud or overreaching) is governed by federal law in contrast to the scope or interpretation of a forum selection clause (whether the claims and parties are subject to the clause), which is governed by state law).

³Section 1404(a) also applies to the venue question in a diversity jurisdiction case. See Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988) (holding that federal law, specifically 28 U.S.C. § 1404(a), rather than substantive contract law, governed whether to grant motion to transfer a diversity case to venue provided in forum selection clause).

⁴Private interest factors include: plaintiffs forum preference as manifested in the original choice; the defendant’s preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses—hut only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). Jumara, 55 F.3d at 879.

⁵Public interest factors have included: the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Jumara, 55 F.3d at 879-880. “[W]hen a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules — a factor that in some circumstances may affect public-interest considerations” given that a court’s familiarity with the applicable law is a potential factor. Atl. Marine, 571 U.S. at 64-65.

⁶Notably, Plaintiff disputes that admiralty jurisdiction exists, but only cites to federal caselaw.

⁷In Carnival Cruise, the Court specifically noted that it was not addressing the question of sufficient notice of the forum clause. Carnival Cruise, 499 U.S. at 590.

⁸Given this ruling, the Court need not address Defendant’s additional contention that Plaintiff has accepted and is bound by the terms of the B/L because he has sued on it even though the Complaint alleges negligence and violations of New Jersey CFA rather than breach of contract.

⁹Because the cargo was damaged on land, Plaintiff contends that COGSA is inapplicable. However, “[alit cargo shipments carried by sea to or from the United States are subject to COGSA.” Fireman’s Fund, 131 F.3d at 1339. Moreover, the B/L expressly extends the application of COGSA to “the entire time the Carrier is responsible for the Goods,” including “after discharge from the vessel.” B/L, ¶ 4(a). By the B/L’s express terms, COGSA governs the land transport of the goods at issue. See Kirby, 543 U.S. at 29 (recognizing that parties may extend COGSA‘s applicability by contract to the entire period in which goods would be under carrier’s responsibility, including period of inland transport). Accordingly, Defendant argues that COGSA preempts Plaintiff’s state law claims. See Polo Ralph Lauren, L.P. v. Tropical Shipping & Const. Co., Ltd., 215 F.3d 1217, 1220 (11th Cir. 2000) (“COGSA, when it applies, supersedes other laws.”); Amazon Produce Network, LLC v. M/V LYKES OSPREY, 553 F. Supp. 2d 502, 506 (E.D. Pa. 2008) (COGSA “provides an exclusive remedy for damage to cargo incurred during carriage between foreign and United States ports.”). However, the Court need not resolve this dispute to rule on the pending transfer motion.

Martin v. Thomas

Supreme Court of Louisiana

June 29, 2022, Decided

No. 2021-C-01490

Reporter

2022 La. LEXIS 1288 *; 2021-01490 (La. 06/29/22); 2022 WL 2339095

REGINALD MARTIN VS. RODNEY THOMAS, GREER LOGGING, LLC and NATIONAL LIABILITY AND FIRE INSURANCE COMPANY

Notice: THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.

Prior History: [*1] On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Caddo.

Martin v. Thomas, 326 So. 3d 334, 2021 La. App. LEXIS 1201, 2021 WL 3523559 (La.App. 2 Cir., Aug. 11, 2021)

Disposition: REVERSED AND REMANDED.

Core Terms

fault, training, summary judgment, negligent hiring, scope of employment, driver, damages, vicarious liability, comparative fault, negligence claim, cause of action, supervision, hiring, negligent entrustment, respondeat superior, tortfeasor, assigned, driving, cases, financial responsibility, percentage of fault, theory of liability, stipulates, alleges, partial summary judgment, degree of fault, district court, matter of law, mover

Case Summary

Overview

HOLDINGS: [1]-A partial summary judgment in favor of the employer was improper because a plaintiff could pursue both a negligence cause of action against an employee for which the employer was vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, even if the employer had stipulated to the course and scope of employment.

Outcome

Reversed and remanded.

LexisNexis® Headnotes

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Defenses

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Elements

Torts > Negligence > Types of Negligence Actions > Negligent Entrustment

Torts > … > Affirmative Duty to Act > Types of Special Relationships > Employers

HN1 Negligent Hiring, Retention & Supervision, Defenses

A plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury.

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Appropriateness

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Summary Judgment Review > Standards of Review

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

Civil Procedure > Appeals > Standards of Review > De Novo Review

HN2 Entitlement as Matter of Law, Appropriateness

A de novo standard of review is applied in considering lower court rulings on summary judgment motions. Thus, the same criteria that govern the district court’s consideration of whether summary judgment is appropriate is used. Pursuant to La. Code Civ. Proc. Ann. art. 966(A)(3)-(4), a court must grant a motion for summary judgment if the pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. Code Civ. Proc. Ann. art. 969; the procedure is favored and shall be construed to accomplish these ends. art. 966(A)(2). A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. art. 966(E).

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

Civil Procedure > … > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

HN3 Summary Judgment, Burdens of Proof

With regard to summary judgment, the burden of proof rests with the mover; nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. Code Civ. Proc. Ann. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. When a motion for summary judgment is made and supported as provided in La. Code Civ. Proc. Ann. art. 967(A)2, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in art. 967(A), must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. art. 967(B).

Governments > Legislation > Interpretation

HN4 Legislation, Interpretation

The paramount consideration in statutory construction is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law. It is well established that the starting point for the interpretation of any statute is the language of the statute itself. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further interpretation made in search of the Legislature’s intent. La. Civ. Code Ann. art. 9; La. Rev. Stat. Ann. § 1:4. In the event the language of a statute is susceptible of different meanings, the interpretation must best conform to the purpose of the law. La. Civ. Code Ann. art. 10. When analyzing legislative history, it is presumed the Legislature’s actions in crafting a law were knowing and intentional. More particularly, it must be assumed that the Legislature was aware of existing laws on the same subject, as well as established principles of statutory construction and the effect of their legislative acts.

Business & Corporate Compliance > … > Remedies > Buyer’s Damages & Remedies > Fraud Remedies

Torts > … > Liabilities of Lessors > Negligence > Duty to Inspect

Contracts Law > … > Consideration > Enforcement of Promises > Detriment to Promisee

Torts > … > Liabilities of Lessors > Negligence > Premises Leased for Public Use

Torts > Premises & Property Liability > Lessees & Lessors > Liability of Lessees

HN5 Buyer’s Damages & Remedies, Fraud Remedies

Under La. Civ. Code Ann. arts. 2315(A) and 2316, a plaintiff is allowed to assert a claim against a party who has caused him or her harm.

Civil Procedure > … > Pleadings > Complaints > Requirements for Complaint

HN6 Complaints, Requirements for Complaint

Louisiana’s Code of Civil Procedure establishes a system of fact pleading. La. Code Civ. Proc. Ann. art. 891. So long as the facts constituting a cause of action are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the theory of the case doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished. This allows a plaintiff to recover under whatever legal theory is appropriate based on the facts pleaded. Further, La. Code Civ. Proc. Ann. art. 892 provides for pleading two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive.

Torts > Business Torts > Negligent Hiring, Retention & Supervision > Elements

Torts > Negligence > Types of Negligence Actions > Negligent Entrustment

HN7 Negligent Hiring, Retention & Supervision, Elements

The tort of negligent hiring and the tort of negligent entrustment are recognized causes of action in Louisiana.

Torts > Public Entity Liability > Liability > Vicarious Liability

HN8 Liability, Vicarious Liability

Vicarious liability is not a cause of action, but rather a method of holding one party liable for the conduct of another, of which respondeat superior is merely a species.

Torts > … > Employers > Scope of Employment > Factors

HN9 Scope of Employment, Factors

An employer is not only responsible for his or her own tortious conduct but also for that of an employee in the exercise of the function of the employment.

Torts > … > Employers > Scope of Employment > Application of State Law

Torts > … > Defenses > Comparative Fault > Apportionment of Fault

HN10 Scope of Employment, Application of State Law

Under Louisiana’s pure comparative fault regime, the negligence of all persons, including those not in the litigation, those without the ability to pay, and the injured victim him- or herself, shall be assigned a percentage of fault. La. Civ. Code Ann. art. 2323; La. Code Civ. Proc. Ann. art. 1812. In addition, a joint tortfeasor cannot be liable for more than his or her degree of fault. La. Civ. Code Ann. art. 2324. It is possible that an employer and an employee may both be assigned a percentage of fault, depending on the facts. An employer will still be financially responsible for an employee’s percentage of fault if the employee was in the course and scope of employment. The initial assessment of fault required by the law is not bypassed due to the employer-employee relationship. The assessment of fault shall be made first as required by law. If any fault is assessed to the employee, and if it is determined that the employee was in the course and scope of the employment, then the employer becomes financially responsible for the employee’s fault under the theory of respondeat superior.

Torts > … > Defenses > Comparative Fault > Apportionment of Fault

Torts > … > Defenses > Comparative Fault > Procedural Matters

Torts > … > General Premises Liability > Defenses > Comparative Fault & Contributory Negligence

HN11 Comparative Fault, Apportionment of Fault

Under contributory negligence principles, if a plaintiff is assigned any percentage of fault by the fact-finder, that plaintiff cannot recover. Under comparative fault, the fault of the plaintiff mitigates damages but does not defeat them entirely. Shielding a potential tortfeasor from liability is not compatible with a comparative negligence regime.

Torts > Public Entity Liability > Liability > Vicarious Liability

HN12 Liability, Vicarious Liability

Under Louisiana law, fault is compared, not subsumed due to the application of the theory of respondeat superior after fault has been determined.

Judges: Hughes, J. Crichton, J., additionally concurs and assigns reasons. Genovese, J., additionally concurs for the reasons assigned by Justice Crichton and Justice Crain. Crain, J., concurs and assigns reasons. Griffin, J., additionally concurs for the reasons assigned by Justice Crichton and Justice Crain.

Opinion by: Hughes

Opinion

[Pg 1] Hughes, J.

At issue in this motion for partial summary judgment is whether HN1 a plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury. We hold that a plaintiff can maintain both claims even if the employer has stipulated to the course and scope of employment. We therefore reverse the partial summary judgment in favor of the employer which dismissed the claims asserted directly against it, and remand to the district court.

FACTS AND PROCEDURAL HISTORY

Plaintiff [*2] Reginald Martin named truck driver Rodney Thomas, his employer Greer Logging, LLC, and its insurer National Liability and Fire Insurance Company as defendants in this personal injury case. The plaintiff alleges that he and defendant Thomas were involved in a collision on South Purdue Street in Vivian, Louisiana at [Pg 2] 8:27 p.m. on December 17, 2016. The plaintiff was driving a 2004 Honda Accord. Defendant Thomas was operating a 2016 Peterbilt tractor truck owned by Greer Logging. The plaintiff alleges Thomas was backing into a driveway.

The plaintiff alleges that following the accident he suffered from several injuries including head/facial contusions, multiple broken ribs, a fractured sternum, an open fracture of the tibial plateau, an open comminuted fracture of his left patella, and open wounds of the left leg, knee, and ankle. He also alleges mental anguish and distress in his petition.

The plaintiff’s initial petition, filed April 4, 2017, alleged only negligence on the part of driver Thomas. In their answer, the defendants admitted that Thomas was at all pertinent times in the course and scope of his employment with Greer Logging, LLC.

The plaintiff filed a supplemental and amending [*3] petition on July 16, 2020. The amended petition added causes of action against Greer Logging for negligent hiring, supervision, training, and retention as well as a negligent entrustment claim (hereinafter “direct negligence claims”). Specifically, the plaintiff alleged negligence on the part of employer Greer Logging for its failure to do a thorough background check on Thomas; to check employment and personal references; to check employment history and attempt to speak with former supervisors; to check driving records and history prior to hiring him; to establish and enforce proper employee screening; in hiring him despite his incompetent driving record; to train him about proper driving; to train him regarding backing the tractor trailer; to train him regarding the proper use of spotters; to train him how to be attentive and do what he should have done or see what he should have seen in order to avoid the accident; to supervise him; for negligent entrustment of the vehicle despite the knowledge that he was an incompetent driver; and for negligent entrustment of the vehicle to him despite actual or constructive knowledge that he would drive the [Pg 3] tractor trailer in a negligent, [*4] reckless, or careless manner, while knowing that he was likely to use the vehicle in a manner involving an unreasonable risk of physical harm to other drivers.

The defendants filed a motion for partial summary judgment seeking dismissal of the claims asserted in the amended petition. They argued that because course and scope of employment had been admitted, under Louisiana jurisprudence, a plaintiff cannot maintain direct negligence claims against an employer while also maintaining a claim against an employee for which a plaintiff seeks to hold the employer vicariously liable.

The trial court granted the defendants’ partial motion for summary judgment, dismissing with prejudice the claims raised in the amended petition. Plaintiff filed a devolutive appeal, and the court of appeal affirmed. Martin v. Thomas, 54,009 (La. App. 2 Cir. 8/11/21), 326 So.3d 334.

LAW AND ANALYSIS

HN2 This court applies a de novo standard of review in considering lower court rulings on summary judgment motions. Bufkin v. Felipe’s La., LLC, 14-288, p. 3 (La. 10/15/14), 171 So.3d 851, 854; Catahoula Par. Sch. Bd. v. La. Mach. Rentals, LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065, 1071. Thus, we use the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Id. Pursuant to Louisiana Code of Civil Procedure article 966(A)(3)-(4), a court must grant a motion for summary judgment if the pleadings, memoranda,¹ affidavits, depositions, answers to interrogatories, [*5] certified medical records, written stipulations, and admissions show that there is no genuine issue of [Pg 4] material fact and that the mover is entitled to judgment as a matter of law. Bufkin, 14-0288 at p. 3, 171 So.3d at 854; Catahoula, 12-2504 at p. 8, 124 So.3d at 1071. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by art. 969; the procedure is favored and shall be construed to accomplish these ends. La. Code Civ. Proc. art. 966(A)(2). A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. La. Code Civ. Proc. art. 966(E).

HN3 The burden of proof rests with the mover; nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. Code Civ. Proc. art. 966(D)(1). The burden is on the adverse [*6] party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. “When a motion for summary judgment is made and supported as provided [in La. Code Civ. Proc. art. 967(A)²], an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided [in La. Code Civ. Proc. art. 967(A)], must set forth specific facts showing that there is a genuine issue [Pg 5] for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” La. Code Civ. Proc. art. 967(B).

Applicant-plaintiff argues to this court that dismissing his direct negligence claims against Greer Logging is in contravention of various Louisiana Civil Code articles including those that require the fault of all persons contributing to the plaintiff’s injury be quantified by the jury and those that require employers to be liable for damage caused by employees as well as general tort principles.

The defendants argue that when an employer admits that its employee was acting in course and scope at the time of the accident, direct negligence claims against the employer are “subsumed” by the driver’s negligence and [*7] fault for which the employer will be vicariously liable.

This case presents an issue of first impression for this court. HN4 As always, we begin our analysis by looking at all relevant legislation as legislation is superior to any other source of law. Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales & Use Tax Comm’n, 04-473, p. 34 (La. 4/1/05), 903 So.2d 1071, 1092 (citing La. Civ. Code art. 2). “[T]he paramount consideration in statutory construction is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27 (citing State v. Johnson, 03-2993, p. 12 (La. 10/19/04), 884 So.2d 568, 575). It is well established that “[t]he starting point for the interpretation of any statute is the language of the statute itself.” Dejoie v. Medley, 08-2223, p. 6 (La. 5/5/09), 9 So.3d 826, 829. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further interpretation made in search of the Legislature’s intent. Dejoie, 08-2223 at p. 6, 9 So.3d at 829; La. Civ. Code art. 9; La. R.S. 1:4. In the event the language of a statute is susceptible of different meanings, the interpretation must best conform to the purpose of the law. C.C. art. 10. When [Pg 6] analyzing legislative history, it is presumed the Legislature’s actions in crafting a law were knowing and intentional. M.J. Farms, 07-2371 at pp. 13-14, 998 So.2d at 27. More particularly, this court must assume the Legislature was aware of existing laws on the same subject, as well as established [*8] principles of statutory construction and the effect of their legislative acts. Id.

Louisiana Civil Code art. 2315(A) provides:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Louisiana Civil Code art. 2316 provides:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

HN5 Thus, a plaintiff is allowed to assert a claim against a party who has caused him or her harm.

HN6 Louisiana’s Code of Civil Procedure establishes a system of fact pleading. La. Code Civ. Proc. art. 891. So long as the facts constituting a cause of action are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the “theory of the case” doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished. First S. Prod. Credit Ass’n v. Georgia-Pac., 585 So.2d 545, 548 (La. 1991). This allows a plaintiff to recover under whatever legal theory is appropriate based on the facts pleaded. Perkins v. Scaffolding Rental & Erection Serv., 568 So.2d 549, 553 (La. 1990). Further, Louisiana Code of Civil Procedure art. 892 provides for pleading two or more causes of action in the alternative, “even though the legal or factual bases thereof may be inconsistent or mutually exclusive.”

HN7 The tort of negligent hiring was expressly recognized by this court in Roberts v. Benoit [*9] as cognizable under Louisiana fault principles embodied in Civil Code article 2315. Roberts, 605 So.2d 1032 (La. 1991). In Roberts, this court noted that [Pg 7] common law jurisprudence views a claim that is subject to respondeat superior and a claim of negligent hiring as distinct:

The former is based on the [employee’s] negligence, which is imputed to the [] employer; the latter is based upon the employer’s independent negligence in hiring, commissioning, training and/or retaining the [employee]. These two theories of liability are separate and independent.

Roberts, 605 So.2d at 1037. Likewise, negligent entrustment has also been recognized as a cause of action in Louisiana. See, e.g., Stokes v. Stewart, 99-0878 (La. App. 1 Cir. 12/22/00), 774 So.2d 1215.

In this case the plaintiff alleges both the employer and the employee were negligent. Concerning respondeat superior,³ Louisiana Civil Code art. 2317 provides in part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

In addition, Louisiana Civil Code art. 2320 provides in part: 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.

In the above cases, responsibility only attaches, when the masters or employers . . . might have prevented the act which caused the damage, and have not done it.

The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of [*10] quasi-contracts, and of offenses and quasi-offenses.

HN9 Thus, the law states that an employer is not only responsible for his or her own tortious conduct but also for that of an employee in the exercise of the function of the employment.⁴

[Pg 8] Furthermore, Louisiana Civil Code art. 2323(A) provides:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons [*11] causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

Louisiana Civil Code art. 2324(B) provides:

If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, [*12] including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.

Louisiana Code of Civil Procedure art. 1812, titled “Special Verdicts,” provides in part:

C. In cases to recover damages for injury, death, or loss, the court at the request of any party shall submit to the jury special written questions inquiring as to:

(1) Whether a party from whom damages are claimed, or the person for whom such party is legally responsible, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage.

***

(3) If appropriate, whether there was negligence attributable to any party claiming damages, and, if so:

[Pg 9] (a) Whether such negligence was a legal cause of the damages, and, if so:

(b) The degree of such negligence, expressed in percentage.

In Thompson v. Winn-Dixie Montgomery, Inc., a plaintiff filed suit against a grocery store, which in turn filed a third-party demand against a cleaning service contracted to provide floor care and janitorial services to the grocery store. Thompson, 2015-477, p. 1 (La. 10/14/15), 181 So.3d 656, 658-59. The cleaning service filed a third-party claim against its subcontractor for those services. Id. at p. 1, 181 So.3d at 659. The jury returned a [*13] verdict in favor of the plaintiff, finding the subcontractor 70 percent at fault and the grocery store 30 percent at fault. Id. On appeal, the court amended the district court’s judgment, holding that the grocery store was statutorily 100 percent at fault, referencing La. R.S. 9:2800.6, which provides for the duty and burden of proof in a negligence case against a merchant. Id. at p. 4, 181 So.3d at 660. In reversing the court of appeal, this court wrote:

[T]he language of Articles 2323 and 2324 clearly and unambiguously provides that comparative fault principles apply in “any action for damages” and apply to “any claim” asserted under “any law or legal doctrine or theory of liability.” It is indisputable that under the express provisions of La. C.C. art. 2323, 100% of the causative fault for a harm must be allocated in actions for an injury under any theory of liability. See H. Alston Johnson, 12 La. Civ. L. Treatise, Tort Law §§ 8.5 & 16.29 2d ed.). As this court squarely held in Dumas, 828 So. 2d at 537-39, Articles 2323 and 2324 require that each actor be assigned an appropriate percentage of fault regardless of the legal theory of liability asserted against each person, and that each joint tortfeasor is only liable for his degree of fault. . . . “The fundamental purpose of Louisiana’s comparative fault scheme is to [*14] ensure that each tortfeasor is responsible only for the portion of the damage he has caused.” Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 706. Statutory duties imposed on one tortfeasor do not excuse joint tortfeasors from the consequences of their own negligent acts.

Thompson, pp. 9-10, 181 So.3d at 664.

HN10 Under Louisiana’s pure comparative fault regime, the negligence “of all persons,” including those not in the litigation, those without the ability to pay, and the injured victim him- or herself, “shall” be assigned a percentage of fault. La. Civ. [Pg 10] Code art. 2323; La. Code Civ. Proc. art. 1812. In addition, a joint tortfeasor cannot be liable for more than his or her degree of fault. La. Civ. Code art. 2324. It is possible that an employer and an employee may both be assigned a percentage of fault, depending on the facts. An employer will still be financially responsible for an employee’s percentage of fault if the employee was in the course and scope of employment. The initial assessment of fault required by the law is not bypassed due to the employer-employee relationship.

The assessment of fault shall be made first as required by law. If any fault is assessed to the employee, and if it is determined that the employee was in the course and scope of the employment, then the employer becomes financially responsible for the employee’s fault [*15] under the theory of respondeat superior. This societal decision as to who actually pays does not change the manner of assessing fault to all parties as required by law.

It has been noted that the rule that the defendant would have us adopt is a relic of contributory negligence that is not compatible with a comparative fault regime. Natalie R. Earles, Stipulating Vicarious Liability to Avoid Direct Negligence Claims: Why This Relic of the Past Should be Abandoned in Louisiana, Louisiana Law Review (Mar. 28, 2022, 2:00 P.M.), https://lawreview.law.lsu.edu/2021/10/27/stipulating-vicarious-liability-to-avoid-direct-negligence-claims-why-this-relic-of-the-past-should-be-abandoned-in-louisiana.

HN11 Louisiana Civil Code art. 2323 was rewritten in 1979 to “eliminate the judicially created rule that contributory negligence was a complete bar to the plaintiff’s recovery, and to substitute a procedure by which any negligence on the part of the plaintiff would operate as a percentage reduction of his recovery.” Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La. 1988). Under contributory negligence principles, if a plaintiff is assigned any percentage of fault by the fact-finder, that plaintiff cannot recover. Under comparative fault, the fault of [Pg 11] the plaintiff mitigates damages [*16] but does not defeat them entirely. As noted by another jurisdiction, the rule precluding a plaintiff from bringing direct negligence claims against an employer who has admitted course and scope “loses much of is force” when applied in a comparative negligence regime. Lorio v. Cartwright, 768 F. Supp. 658, 660 (N.D. Ill. 1991).

Shielding a potential tortfeasor from liability is not compatible with a comparative negligence regime, however. As the federal district court in Gordon v. Great West Casualty Co. noted:

Where an employer’s potential fault is merged with that of the employee, the jury might not have a true picture of either party’s wrongful acts — which may, in turn, magnify the comparative fault of the plaintiff or other individuals. For instance, a plaintiff involved in a car accident may bring a claim of negligence against a defendant truck driver who failed to exercise adequate care while driving on icy roads. If the employer then stipulates to vicarious liability, the plaintiff cannot also maintain a claim based on the employer’s negligent training or supervision of the employee. Accordingly, evidence that the company failed to train employees on how to encounter that hazard or required them to push on with their loads despite the [*17] conditions could be ruled inadmissible — as other defendants have argued in multiple cases before this court. If admitted, the evidence could also tend to make the employee look less culpable. After all, is it really his fault that he was not properly trained or supervised? And the verdict sheet leaves no other place to account for the employer’s direct negligence. If the jury decides to go easier on the employee, other individuals — for instance, the plaintiff or drivers of other vehicles involved in the accident — necessarily become more culpable and the fundamental purpose of comparative fault is frustrated. Likewise, where the employer can exclude evidence or avoid any public airing of its direct negligence merely because it is also financially liable under a theory of vicarious liability, the deterrent aims of tort law are thwarted. In effect, under such a rule, the employer would serve as insurer for the employee rather than codefendant and need not even have its identity revealed to the jury.

Gordon v. Great West Cas. Co., No. 2:18-CV-967, 2020 U.S. Dist. LEXIS 112281, 2020 WL 3472634, at *4 (W.D. La. June 25, 2020).

Defendants point to the federal district court opinion in Dennis v. Collins as support for their contention that direct negligence claims are “subsumed” by claims against an employee once [*18] course and scope are admitted. Dennis, 2016 U.S. Dist. LEXIS 155724, 2016 WL 6637973, at *3 [Pg 12]. In Dennis, a Greyhound bus struck a car in which plaintiff was a passenger. 2016 U.S. Dist. LEXIS 155724, [WL] at *1. The plaintiff alleged that the bus driver was negligent in his driving and that his employer, Greyhound Lines, was negligent in the supervision of, teaching, and training the driver. Id. Greyhound stipulated to the fact that the driver was acting in the course and scope of employment at the time of the accident. 2016 U.S. Dist. LEXIS 155724, [WL] at *5. Greyhound then filed a motion for partial summary judgment seeking dismissal of the direct claims against it. 2016 U.S. Dist. LEXIS 155724, [WL] at *1.

The Dennis court stated at the outset that because there was no binding precedent on this issue under Louisiana law, it would be making “its best Erie guess.” 2016 U.S. Dist. LEXIS 155724, [WL] at *2. Based on previously decided state and federal cases, the Dennis court drew a distinction between cases where course and scope were contested or where the tort was intentional and cases where an employer had admitted course and scope at the time of the accident. 2016 U.S. Dist. LEXIS 155724, [WL] at *6. The Dennis court opined that where course and scope was an issue or where the tort was intentional, a plaintiff may simultaneously maintain independent causes of action against an employee and employer. 2016 U.S. Dist. LEXIS 155724, [WL] at *6-7. On the other hand, according to Dennis, if an employer stipulates [*19] to course and scope, a plaintiff may not simultaneously maintain direct causes of action against the employer. 2016 U.S. Dist. LEXIS 155724, [WL] at *7.

The Dennis court reasoned that an employer could not be found liable of negligent hiring if the employee was not also negligent. 2016 U.S. Dist. LEXIS 155724, [WL] at *8. Said another way, even if the employer had been negligent in hiring the employee, there is no way that the employer’s negligence could have been either the but-for cause or the legal cause of the injury to the plaintiff. Id.

Dennis has been used as support in a number of federal and state decisions on this issue.⁵ Dennis relied on Libersat v. J & K Trucking, which, at the time Dennis [Pg 13] was decided, was one of the only Louisiana cases that discussed the exact issue of a plaintiff not being allowed to put on evidence of negligent hiring and training after an employer admitted course and scope. Libersat, 00-192 (La. App. 3 Cir. 10/11/00), 772 So.2d 173. On appeal, plaintiffs in Libersat assigned error to the trial court’s refusal to instruct the jury on the employer’s duty in hiring and training the employee. Id. at p. 2, 772 So.2d at 175. The appellate court, reviewing for abuse of discretion, opined:

[T]his Court finds that the trial court’s instructions regarding [the employer’s] possible liability are an accurate reflection of the law. Patterson, as Mr. Mitchell’s [*20] employer, would be liable for his actions under the theory of respondeat superior. If Mr. Mitchell breached a duty to the [plaintiffs], then Patterson is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the [plaintiffs] then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the [plaintiffs]. The trial judge has the responsibility of reducing the possibility of confusing the jury, and he may exercise the duty to decide what law is applicable. Sparacello v. Andrews, 501 So.2d 269 (La. App. 1 Cir.1986), writ denied, 502 So.2d 103 (La. 1987). The court did not err in using its discretion to omit [plaintiffs’] requested jury instructions regarding negligent hiring and training because they were not appropriate in this case.

Id. at pp. 10-11, 772 So.2d at 179. Libersat was correct in pointing out that an employer can only be liable under theories of negligent hiring, supervision, training and retention, and negligent entrustment if the employee is at fault, and that the employer cannot be liable if the employee is not at fault. As noted in Libersat, “no degree of negligence” on the part of the employer in hiring the employee would make the employer liable if the employee did not breach a duty to the plaintiff. This is an accurate, but [*21] limited, observation. The possibility that both the employee and employer may be at fault is not thus foreclosed or “subsumed.” Our traditional civil jury instruction on this point provided in part:

When I say that the injury must be shown to have been caused by the defendant’s conduct, I don’t mean that the law recognizes only one cause of an injury, consisting of only one factor or thing, or the conduct [Pg 14] of only one person. On the contrary, a number of factors may operate at the same time, either independently or together, to cause injury or damage.

H. Alston Johnson III, Civil Jury Instructions, in 18 Louisiana Civil Law Treatise § 3:3 (3d ed. 2021). If no fault is shown on the part of the employee, the inquiry is ended, because there is no cause-in-fact or legal cause. But if fault is shown on the part of the employee, then the issue of whether there is also fault on the part of the employer remains an open question which must be decided according to the evidence on a case by case basis. The fault of both the employer and employee “shall be determined.” C.C. art. 2323. Depending on the evidence, the employer may well be entitled to summary judgment. And, in a case like Libersat, if the evidence [*22] is lacking, a jury instruction at trial regarding an employer’s negligence may not be appropriate. But the employer does not automatically prevail on summary judgment as a matter of law merely by stipulating that the employee was in the course and scope of employment. The evidence should determine whether the negligence of both the employer and the employee caused the damages claimed. The application of theories of vicarious liability or respondeat superior occur only if a degree of fault has been assessed to the employee in the course and scope of employment, for which the employer becomes financially responsible.

Based on the foregoing, we conclude that the district court erred granting the motion for partial summary judgment in favor of the defendants as a matter of law. HN12 Under Louisiana law, fault is compared, not “subsumed” due to the application of the theory of respondeat superior after fault has been determined.

DECREE

Accordingly, we reverse the district court ruling and remand.

REVERSED AND REMANDED.

Concur by: Crichton; Crain

Concur

[Pg 1] Crichton, J., additionally concurs and assigns reasons:

I agree with the majority that the plaintiff in this matter may maintain his claims [*23] against both the employee and the employer even if the employer has stipulated to vicarious liability for the employee’s negligent acts. It is significant that defendants do not argue that plaintiff’s employer negligence claims lack factual support. Instead, they take the position that all such claims must be dismissed as a matter of law where it is stipulated that the employee was in the course and scope of employment. To the contrary, Louisiana Civil Code article 2323 provides, by its plain language, that the fault of “all persons causing or contributing” to the plaintiff’s loss “shall be determined . . . under any law or legal doctrine or theory of liability, regardless of the basis of liability.” (Emphasis added.) See also La. C.C.P. art. 892 (“[A] petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive.”).

We have long held that the vicarious liability claim for which an employer may be responsible by law — regardless of causation — and the negligent hiring claim for which an employer may be liable by its own acts of negligence are “two theories of liability [that] are separate and independent.” Roberts v. Benoit, 605 So. 2d 1032, 1037 (La. 1991), on reh’g (May 28, 1992). Where [*24] causation is established, [Pg 2] comparative fault applies and requires the trier of fact to consider “both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.” Watson v. State Farm Fire & Cas. Ins. Co., 469 So. 2d 967, 974 (La. 1985). Because defendants have failed to disprove that some fault may be allocated to both the employer and the employee due to the negligent actions of each, comparative fault requires that the claims against the employer be maintained at this point in the proceedings. WILLIAM E. CRAWFORD, Allocation of fault, 12 LA. CIV. L. TREATISE, Tort Law § 8:5 (2d ed.) (“Under the express provisions of C.C. art. 2323, as implemented by C.C.P. art. 1812c, 100% of the causative fault for a harm must be allocated, whether to parties or nonparties.”).

Of course, a plaintiff’s claim for negligent hiring must be meritorious. See La. Rule Prof. Conduct 3.1 (a lawyer shall not assert a claim “unless there is a basis in law and fact for doing so that is not frivolous”). Furthermore, after adequate discovery it may be that summary judgment in favor of the employer is warranted because no genuine issues of material fact exist and defendant employer is thus entitled to summary judgment as to the negligent hiring claim. Where an [*25] employer’s negligence is established, however, comparative fault analysis will apply at the trial on the merits.

For these reasons, and those set forth by the majority, I agree to reverse the lower courts and remand to the trial court for further proceedings, including necessary discovery.

Crain, J., concurring,

I write separately to emphasize that on the issue presented, often the distinction between vicarious liability and fault has been lost. Vicarious liability involves a shifting of financial responsibility, not fault. If an employee is in the course and scope of employment and causes injury, the employer is financially responsible for the employee’s fault. La. Civ. Code art. 2320. That determination is not based on the employer’s fault. See Roberts v. Benoit, 605 So.2d 1032, 1036-37 (La. 1991). It is an independent financial responsibility based on the employment relationship. Id.

Separately, an employer can be assigned fault under any viable theory of liability available against the employer. La. Civ. Code art. 2315. If it involves negligent hiring, supervision, training, retention, or a negligent entrustment claim, the factfinder will simply compare and weigh the acts of both the employee and employer, then assign fault. La. Civ. Code art. 2323. I agree with the majority.

End of Document

¹See La. Code Civ. Proc. art. 966(A)(3) (“[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.”); La. Code Civ. Proc. art. 966, 2015 Revision Comment (c) (“Although a memorandum is not a pleading or evidence, it is a proper document that can be used by a party to advance his arguments in support of or in opposition to the motion. See, e.g., Meaux v. Galtier, 972 So.2d 1137 (La. 2008).”).

²See La. Code Civ. Proc. art. 967(A) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”).

³HN8 As noted in Dennis v. Collins, vicarious liability is not “a cause of action, but rather a method of holding one party liable for the conduct of another, of which respondeat superior is merely a species.” No. 15-2410, 2016 U.S. Dist. LEXIS 155724, 2016 WL 6637973, at *5 (W.D. La. Nov. 9, 2016).

⁴We also note that La. R.S. 9:3921(A) provides:

Notwithstanding any provision in Title III of Code Book III of Title 9 of the Louisiana Revised Statutes of 1950 to the contrary, every master or employer is answerable for the damage occasioned by his servant or employee in the exercise of the functions in which they are employed. Any remission, transaction, compromise, or other conventional discharge in favor of the employee, or any judgment rendered against him for such damage shall be valid as between the damaged creditor and the employee, and the employer shall have no right of contribution, division, or indemnification from the employee nor shall the employer be allowed to bring any incidental action under the provisions of Chapter 6 of Title I of Book II of the Louisiana Code of Civil Procedure against such employee.

⁵See, e.g., Elee v. White, 19-1633 (La. App. 1 Cir. 7/24/20), So.3d , 2020 La. App. LEXIS 1115; Landry v. Nat’l Union Fire Ins. Co. of Pittsburg, 19-337 (La. App 5 Cir. 12/30/19), 289 So.3d 177; Perro v. Alvarado, 20-339 (La. App. 3 Cir. 9/30/20), 304 So. 3d 997; Wilcox v. Harco Int’l Ins., No. 16-187, 2017 U.S. Dist. LEXIS 97950, 2017 WL 2772088 (M.D. La. June 26, 2017); but see Gordon v. Great West Cas. Co., No. 18-967, 2020 U.S. Dist. LEXIS 112281, 2020 WL 3472634, at *4-5 (W.D. La. June 25, 2020).