Written by: Geoffrey Mitchell
The Louisiana Supreme Court’s anticipated, though not entirely unexpected, decision in Martin v. Thomas, 2021-01490 (La. 06/29/22) has been issued. One cannot help but wonder how the ruling will be used to bolster plaintiffs’ use of trial tactics like the Reptile Method or conscious of the community?
In a case of first impression, the Court unanimously rejected contrary caselaw developed and applied by the majority of federal and state appellate courts and held that an employer is not entitled to summary judgment dismissal of direct negligence claims “by stipulating that the employee was in the course and scope of employment.”
Consequently, in addition to vicarious liability for damages caused by the employee’s fault, the employer now faces direct liability for damages which a jury determines was caused by the employer’s negligence in hiring, training, supervising, or retaining the employee, or in negligently entrusting the employee with an activity or instrumentality, such as a commercial vehicle, that caused damage. Essentially, even when they may not have any legitimate bearing on the allocation of fault, the employer’s hiring, training, supervision, and retention policies and procedures will most likely take center stage in discovery and at trial.
Typical of the situations where the issue of negligent hiring is often raised, the Martin case arose out of an accident involving a commercial logging tractor-trailer after work hours. The employee had permission to drive his unloaded rig to his home. The accident occurred while he was attempting to back the rig into his driveway across a dark, wet road. The plaintiff sustained serious injuries and sued the employee, the employer, and its insurer for damages, asserting general negligence claims against the employee and a vicarious liability claim against the employer. In the answer, the defendant employer stipulated that the accident had occurred in the course and scope of the driver’s employment.
Three years later, plaintiff obtained leave to amend his petition to assert fourteen (14) separate acts of negligence against the employer, including the breach of its duty “to formulate, institute and implement hiring, supervision, training, and retention procedures which could have and should have prevented the acts and omissions complained of [and which] encompassed the risk of the particular harm sustained by Plaintiff.”
Because Defendants had already stipulated that the accident occurred during the course and scope of the driver’s employment, the employer sought summary judgment dismissing the allegations of direct negligence asserted in the amended petition. Relying on caselaw developed and applied by the majority of federal and state appellate courts that direct negligence claims against an employer are “subsumed” by the employee’s negligence after fault has been established, the trial court agreed and granted partial summary judgment. The Second Circuit affirmed.
The reason for the majority rule was based on the logic that an employer could not be liable for negligence in hiring if the employee was not also negligent in causing the accident. Put another way, in the absence of employee fault, the employer’s negligence cannot have been the factual or legal cause of the accident or the injuries.
The Supreme Court reversed, rejecting the majority rule as a “relic of contributory negligence that is not compatible with [Louisiana’s] comparative fault regime.” In the Court’s view, the “possibility that both the employee and employer may be at fault is not thus foreclosed or ‘subsumed’” in a pure comparative fault regime. Nor does the act of stipulating to the employee’s fault in the course and scope of employment end litigation over the employer’s direct negligence: “The evidence should determine whether the negligence of both the employer and the employee caused the damages claimed.”
The Court’s decision is a significant blow to all employers in any field or occupation in Louisiana where vicarious liability remains a real and insurable risk -- not just commercial driving operations, but also construction activities, plant operations, and delivery services, however large or small -- in which employees are engaged in activities or operations that pose a risk of injury to persons or property outside of the employment context.
Among the questions raised but not addressed by the Court’s decision are the following:
- If stipulating to course and scope of employment no longer eliminates an employer’s fault for direct negligence, will stipulating that the employee was 100% at fault for the accident be sufficient to foreclose liability for the employer’s direct negligence?
- Will plaintiffs be permitted to broaden discovery to include extensive and overly broad written discovery and corporate depositions regarding the employer’s background checks of its drivers, corporate safety policies, and other hiring, retention, and training practices in an effort to substantiate baseless claims?
- What limits, if any, will trial courts impose on plaintiffs seeking overly broad discovery of employers’ hiring, training, supervision and retention practices?
- Will meager evidence of employer negligence gleaned from such discovery efforts be sufficient to create “genuine issues of material fact” and subject every allegation of employer negligence to a full trial?
The Court places greater faith in summary judgment procedure to weed out unmeritorious cases of employer fault than the real world of tort litigation warrants. The commercial transportation industry, already inundated with fraudulent claims, is likely to be the first to confront the impact of the Court’s decision. In the short run, it seems likely that all employers can now expect to be subjected to a proctoscopic examination of their employment practices, where any slight deviation from some imagined Platonic ideal will be caricatured as corporate indifference or cost-saving measures in the heartless pursuit of profit, all with the intent to inflame the jury to award compensatory damages that border on the punitive.