Linda Honor VS Tangipahoa Parish School Board
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CA 0298 LINDA HONOR VERSUS 1 TANGIPAHOA PARISH SCHOOL BOARD LARRY JACKSON XYZ INSURANCE COMPANY SUPERINTENDENT MARK KOLWE AND PRINCIPAL CARMEN MOORE JudgmentRendered Navember1 2013 Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Case No 2009 0001290 The Honorable M Douglas Hughes Judge Presiding d r Shytishia A C R M Flugence Corrie R Gallien s e f r ESU T s Ce R l Counsel for Plaintiff Appellant Linda Honor Lafayette Louisiana Christopher Moody Albert D Giraud Counsel for Defendants Appeilees Tangipahoa Parish School Board Hammond Louisiana Mark Kolwe and Carmen Moore BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ THERIOT J In this suit for damages arising from a battery committed by a co employee plaintiff appeals a summary judgment in favor of defendants dismissing her claims against all defendants with prejudice We affirm FACTS AND PROCEDURAL HISTORY On May 13 2008 plaintiff Linda Honor was employed by the Tangipahoa Parish School Board as a custodian at Hammond High School On that date another custodian at the school Larry Jackson approached Ms s Honor custodial cart and began touching her personal custodial equipment When Ms Honor questioned Mr Jackson about going through her cart he threw her up against a wall and hit her in the face After reporting the incident in the school office the police officer on duty at the school escorted Ms Honor to the hospital where she was treated for her injuries On April 13 2009 Ms Honor filed a petition for damages allegedly sustained in the incident Named as defendants in Ms Honor petition were s the Tangipahoa Parish School Board Larry Jackson XYZ Insurance Company Tangipahoa Parish School Board Superintendent Mark Kolwe and Hammond High School Principal Carmen Moore The petition alleges that the School Board Superintendent Kolwe and Principal Moore are all vicariously liable for Jackson tortious conduct under the doctrine of s respondeat superior because priar complaints had been made by employees about Jackson behavior and Ms Honor had warned Principal Moore that s s Jackson rage appeared to be escalating and that she feared he was going to explode but no action was taken The defendants filed a motion for summary judgment alleging that Superintendent Kolwe and Principal Moore were not Mr Jackson s employers and thus could not be liable under respondeat superior and that 2 Ms Honor sexclusive remedy against the School Boazd as her employer is in workers compensation since the School Board did not participate in any intentional act which caused Ms Honor injuries Summary judgment was s granted by the trial court dismissing Ms Honor claims against the School s Board Superintendent Kolwe and Principal Moore We reversed the summary judgment on appeal holding that the defendants failed to properly support their motion for summary judgment as required by La C arts P 2 C 966 and 967 in order to shift the burden to the non party B moving In moving for summary judgment the defendants offered only the self serving argument of their memorandum to meet the initial burden of proof Finding that to grant suminary judgment under such circumstances would negate the requirements of articles 966 and 967 we reversed the 2 C B summary judgment Honor v Tangipahoa Parish School Board 10 1822 2011 WL 2976884 La 1 Cir 6 unpublished App 11 10 The defendants filed another motion for summary judgment on October 2 2012 In support of this motion for summary judgment defendants offered the plaintifPs petition affidavits of Superintendent Kolwe and Principal Moore and excerpts from Ms Honor deposition s Ms Honor filed an Exception of Res Judicata asserting that the defendants October 2 2012 motion for summary judgment should be barred by the doctrine of res judicata because it raised the same issues that were befare the court in their first motion for summary judgment which was reversed by the appellate court Ms Honor also opposed the motion for summary judgment After a hearing the court denied Ms Honor exception of res s judicata and granted summary judgment dismissing all three defendants Ms Honor appealed 3 DISCUSSION Ms Honor argues on appeal that because this court reversed the first suminary judgment granted by the trial court in favor of defendants and the defendants second motion for summary judgment asserts no new facts or issues the second motion should be barred by the doctrine of res judicata We disagree It is well settled that the denial of an initial motion for suimnary judgment does not bar a second motion for summary judgment Saizan v Pointe Coupee Parish School Bd 10 p 8 1 Cir 0757 App La 29 10 49 So 559 563 writ denied 2010 La 1 52 3d 64 2599 11 14 So3d 905 The denial of a motion for summary judgment is an interlocutory judgment which the trial court may change at any time up to final judgment An interlocutory judgment cannot serve as the basis for a plea of res judicata Id Furthermore the jurisprudence specifically allows a trial court to consider a second motion for sumuiary judgment after a first motion for summary judgment on the same issue has been denied Id This assignment of error is without merit A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant Duncan v U Ins Co 06 p 3 11 A S 363 La 29 06 950 So 544 546 Appellate courts review summary judgments de novo 2d using the same criteria that govern the trial court consideration of whether s summary judgment is appropriate Costello v Hardy 03 p 8 1146 La 04 21 1 864 So 129 137 A motion for summary judgment should only 2d be granted if the pleadings depositions answers to intenogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law See La GC art 966 P B 4 The burden of proof remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the movant burden on the s motion does not require him to negate all essential elements of the adverse s party claim action or defense but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense s Thereafter if the adverse parly fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact La C art 966 Once the motion for summary P 2 C judgment has been properly supported by the moving party the failure of the moving non party to produce evidence of a material factual dispute mandates the granting of the motion Pugh v St Tammany Parish School Bd 07 p 2 1 Cir 8 994 So 95 97 on 1856 App La 08 21 2d rehearing writ denied 08 La 11 996 So 1113 see also 2316 08 21 2d La C C art 967 P B As movants the defendants had the initial burden of proof for purposes of seeking summary judgment pursuant to La C art P 2 C 966 However as defendants in this matter they would not bear the burden of proof at trial therefore the defendants were only required to point out to the court that there was an absence of factual support for one or more elements essential to Ms Honor action s Louisiana Civil Code article 2320 provides that a master is answerable for the damage occasioned by his servants in the exercise of the functions in which they are employed In their motion for suminary judgment Superintendent Kolwe and Principal Moore pointed to an absence of factual support for an essential element of Ms Honor respondeat superior claims s 5 that they were Mr s Jackson employer The defendants offered the affidavits of Superintendent Kolwe and Principal Moore which both state that they are not Mr Jackson employer The defendants also offered Ms s s Honor deposition testimony that the School Board is in fact Mr s Jackson employer Although Ms Honor argued in her memorandum in opposition to suininary judgment that Superintendent Kolwe and Principal Moore should be considered Mr Jackson employers for purposes of s respondeat superior because of the supervision and control they exercise over him she offered no evidence in support of her assertions to oppose summary judgment Accordingly summary judgment in favor of Superintendent Kolwe and Principal Moore was properly granted Also the subject of the defendants motion for sununary judgment were Ms Honor claims against her employer the School Board alleging s vicarious liability for its s employee intentional tort Generally an sexclusive remedy against his employer for on job injury is employee the workers compensation however an exception is made for intentional torts La R 23 An employer may be vicariously liable for the intentional S 1032 acts of its employees La C art 2320 Craft v Wad Stores Inc O1 Mart 564 p La 3 Cir 10 799 So 1211 1214 writ denied 4 App O1 31 2d 15 132 02 La 3 811 So 933 02 22 2d The Louisiana supreme court has held that in order for an employer to be vicariously liable for the tortious acts of its employee the employee s tortious conduct must be so closely connected in time place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer business as compared with conduct motivated s by purely personal considerations entirely extraneous to the employer s interest Baumeister v Plunkett 95 p 5 5 673 So 994 2270 La 21 96 2d 6 997 Thus in an analysis of vicarious liability for an employee tortious s acts the court must consider more than simply whether the employee was in the course and scope of employment at the time of the incident An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours Vicarious liability will attach in such a case ondy if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer s objective Baumeister at pp 3 673 So at 996 4 2d In determining whether vicarious liability applies the court in Baumeister considered the following factars 1 whether the tortious act was primarily employment rooted 2 whether the violence was reasonably incidental to the performance of the employee duties s 3 whether the act occurred on the employer spremises and 4 whether it occurred during the hours of employment Baumeister at p 4 673 So at 996 2d 97 The supreme court in Baumeister specifically pointed out that it was not holding that all four of these factors must be met before liability may be found but as previously noted an employer is not vicariously liable merely because his employee commits an intentional tort on the employer s premises during working hours The particular facts of each case must be analyzed to determine whether the employee stortious conduct was within the course and scope of his employment Baumeister at p 4 673 So at 2d 997 In its motion for summary judgment the School Board pointed out that the plaintiff has no proof to support her respondeat superior claim against the School Board The evidence before the court on the motion far summary judgment revealed that the altercation between Mr Jackson and 7 Ms Honor began when she caught him touching her personal custodial equipment and she asked him what he was doing Mr Jackson began to curse at Ms Honar and they began to struggle over the equipment Mr Jackson pushed Ms Honor and pinned her up against a wall Ms Honor offered nothing in opposition to the motion for suminary judgment to show that she would be able to cany her burden of proving that Mr Jackson s actions were within the ambit of his assigned duties and also in furtherance of his employer objective s Because Ms Honor failed to come forward with any proof that she would be able to satisfy her evidentiary burden at trial there is no genuine issue of material fact and sunmiary judgment was appropriate CONCLUSION The judgment of the trial court overruling Ms Honor exception of s res judicata and granting summary judgment dismissing Ms Honor sclaims against all parties is affumed Costs of this appeal are assessed to plaintiff Linda Honor AFFIl2MED 8
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