Feb 18, 2022

Newsflash for companies sued in Louisiana for negligence of an employee: Oral arguments scheduled next month

Written by: Sloan L. Abernathy

Take a commercial auto injury case where a plaintiff seeks to recover from a trucker’s employer under dual theories of liability: 1) vicarious liability under the doctrine of respondeat superior[1] for the employee-driver’s negligent operation of a commercial truck, and 2) direct liability for the employer’s independent negligence in hiring, training and supervising its employee.  The majority position that has developed among Louisiana federal and intermediate appellate courts is to grant partial summary dismissal of the plaintiff’s claims for “negligent hiring, training, supervision and entrustment” if the employer has stipulated its employee was in the course and scope of employment at the time of the underlying accident or unintentional tort.[2]  This has allowed employers to prevent, or at least significantly limit, plaintiffs’ attempts to seek discovery of alleged “company negligence,” such as voluminous requests for information and documents concerning internal safety protocols, training procedures and compliance with complex regulatory schemes. 

The underlying rationale is twofold.  One, any negligence that may be allocated to the defendant-employee automatically will be imputed to the employer pursuant to the employer’s stipulation to vicarious liability.  Conversely, if the trier-of-fact finds the plaintiff’s damages did not result from negligence of the defendant-employee, there is no basis to recover from the employer for negligently hiring, training or supervising that employee.[3]  Two, dismissal of the direct negligence claims does not undermine Louisiana’s system of comparative fault because there is no need to allocate fault between an employer and employee when the employer admits it is vicariously liable for the full extent of any liability that may be found against its employee.[4]     

This past December, a seven-judge panel of the Louisiana Supreme Court unanimously granted a plaintiff’s writ application on this issue in Martin v. Thomas, No. 54,009 (La. App. 2 Cir. 08/11/2021), writ granted No. 2021-01490 (La. 12/21/21).  With oral arguments scheduled for March 21, 2022, the Court in Martin will address whether a logging company, which stipulated to vicarious liability for potential negligence of its driver, properly was granted partial summary dismissal of the plaintiff’s claims for “negligent hiring, training, supervision, and entrustment.” It is unclear what prompted the Court to take up the issue in Martin, after having declined to do so just a year earlier in Elee v. White, where a panel comprised of five of the same judges unanimously denied a writ application on the same issue. 2019-1633 (La. App. 1 Cir 07/24/20), 2020 La. App. LEXIS 1115, writ denied 2020-01048 (La. 11/10/20), 303 So. 3d 1038. 

In predicting the result of Martin, three potential outcomes can be surmised.  One, the Court could agree with the majority view whereby direct negligence claims are subject to dismissal if the employer stipulates its employee was in the course and scope of employment, regardless of whether there is an additional stipulation that the employee was at fault.[5]  Two, the Court could opine dismissal requires stipulations to both vicarious liability and fault of the employee.[6]  Three, the Court could adopt the minority view held by one division of Louisiana’s Western District federal court that finds an employer’s stipulation to vicarious liability does not justify dismissal of a plaintiff’s claims for negligent hiring, training, supervision and entrustment.[7]  

It is worth keeping an eye on Martin.  A decision adopting the minority view could open the door to extensive discovery into evidence of purported “company negligence,” which can have the effect of enflaming jurors depending on the extent to which the employer did not maintain internal safety protocols or failed to comply with dense regulatory schemes.  On the bright side, a decision adopting the majority view will further solidify an employer’s ability to dismiss direct negligence claims and thereby limit its obligation to respond to voluminous and tedious discovery requests concerning the employer’s internal practices, protocols and procedures.

[1] In Louisiana, the doctrine of respondeat superior, whereby an employer is vicariously liable for the negligent acts and omissions of an employee while in the course and scope of employment, is codified in Louisiana Civil Code Article 2320.

[2] See, e.g., Spiker v. Salter, No. 3:20-CV-00517, 2021 U.S. Dist. LEXIS 235420, at *6-7 (W.D. La. Dec. 8, 2021); Motes v. Knight Specialty Ins. Co., 2021 U.S. Dist. LEXIS 41124, at *2 (M.D. La. Mar. 4, 2021); Rivera v. Robinson, No. 18-14005, 2020 U.S. Dist. LEXIS 174585, 2020 WL 5658899 (E.D. La. Sept. 23, 2020); Elee v. White, 2019-1633 (La. App. 1 Cir. 07/24/20); 2020 La. App. LEXIS 1115; Vaughn v. Taylor, 2019 U.S. Dist. LEXIS 5251, 2019 WL 171697 (January 10, 2019); see also Libersat v. J & K Trucking, Inc., 772 So. 2d 173 (La. App. 3 Cir. 10/11/2000) (refusing to adopt jury instruction that would allow jury to consider negligent supervision, training or hiring by employer because employer had stipulated to its vicarious liability). 

[3] E.g., Giles v. ACE Am. Ins. Co., No. CV 18-6090, 2019 U.S. Dist. LEXIS 106839, 2019 WL 2617170, at *2 (E.D. La. June 26, 2019) 

[4] E.g., Spiker v. Salter, No. 3:20-CV-00517, 2021 U.S. Dist. LEXIS 235420, at *6-7 (W.D. La. Dec. 8, 2021)

[5] Motes v. Knight Specialty Ins. Co., 2021 U.S. Dist. LEXIS 41124, at *2 (M.D. La. Mar. 4, 2021); Allen v. Royal Trucking Co., 2020 U.S. Dist. LEXIS 188066, at *2 (W.D. La. Oct. 8, 2020); Rivera v. Robinson, No. 18-14005, 2020 U.S. Dist. LEXIS 174585, 2020 WL 5658899 (E.D. La. Sept. 23, 2020); Dennis v. Collins, 2016 U.S. Dist. LEXIS 155724, at *21 (W.D. La. Nov. 9, 2016); Wright v. National Interstate Insurance Co., 2017 U.S. Dist. LEXIS 184182, 2017 WL 5157537 (E.D. La. November 7, 2017); Wilcox v. Harco Int'l. Ins., No. 16-187, 2017 U.S. Dist. LEXIS 97950, 2017 WL 2772088 (M.D. La. June 26, 2017); Pigott v. Heath, 2020 U.S. Dist. LEXIS 18646, 2020 WL 564958, at *4 (E.D. La. Feb. 5, 2020); Giles v. ACE Am. Ins. Co., 2019 U.S. Dist. LEXIS 106839, 2019 WL 2617170, at *3 (E.D. La. Jun. 26, 2019); Franco v. Mabe Trucking Co., 2018 U.S. Dist. LEXIS 198263, at *3 (W.D. La. Nov. 20, 2018); Thomas v. Chambers, 2019 U.S. Dist. LEXIS 65900, at *21 (E.D. La. Apr. 17, 2019); Zinamon v. STR Transp., Inc., 2021 U.S. Dist. LEXIS 34840, at *8 (M.D. La. Feb. 24, 2021); Meyer v. Jencks, 2020 U.S. Dist. LEXIS 202623, at *7 (E.D. La. Oct. 30, 2020); Elee v. White, 2019-1633 (La. App. 1 Cir. 07/24/20); 2020 La. App. LEXIS 1115; Wheeler v. U.S. Fire Ins. Co., 18-1422 (La. App. 1 Cir. 6/13/19), 2019 La. App. LEXIS 1131, 2019 WL 2612903; Brandon v. Richard, 2020-0738 (La. App. 1 Cir. 10/26/20); 2020 La. App. LEXIS 1535; see also Libersat, supra, at Note 2.  

[6] Rodrigue v. Nat'l Ins. Co., 2021 U.S. Dist. LEXIS 56734, at *9 (E.D. La. Mar. 25, 2021) (holding minority view did not apply because defendant stipulated its employee was at fault for accident, in addition to stipulating to its vicarious liability); Landry v. Nat'l Union Fire Ins. Co., 19-337 (La. App. 5 Cir. 12/30/19); 289 So. 3d 177, 184; Ferguson v. Swift Transp. Co. of Ariz., 2020 U.S. Dist. LEXIS 115753, at *3 (W.D. La. June 30, 2020)

[7] Gordon v. Great W. Cas. Co., No. 18-00967, 2020 U.S. Dist. LEXIS 112281, 2020 WL 3472634, at **4-5 (W.D. La. June 25, 2020);Roe v. Safety Nat'l Casualty Corp. et al, No. 18-01353, 2020 U.S. Dist. LEXIS 112156, 2020 WL 3477071 (W.D. La June 25, 2020); Fox v. Nu Line Transport LLC, 2020 U.S. Dist. LEXIS 136738, 2020 WL 4432869 (W.D. La. 07/31/20); see also Zinamon v. STR Transp., Inc., 2021 U.S. Dist. LEXIS 34840, at *8 (M.D. La. Feb. 24, 2021) (calling Gordon v. Great W. Cas. Co. an “outlier decision”)