FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-10624,
DIVISION "0" Honorable Kern A. Reese, Judge
Patrick G. Kehoe, Jr. PATRICK G. KEHOE, JR., APLC COUNSEL FOR
William H. Eckert Michael J. Tarleton Daniel G. Collarini
ECKERT & TARLETON, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Sandra Cabrina Jenkins
Rosemary Ledet Judge
is a personal injury suit arising out of a collision between
a Regional Transit Authority ("RTA") bus and a
pick-up truck. The pick-up truck that Paul Molbert was
driving collided with the RTA bus. Cody Johnson, a passenger
on the RTA bus, commenced this suit against multiple
defendants including the RTA; Mr. Molbert; and Mr.
Molbert's employer, Anesthesia Consultants of the South,
trial was held in this matter. At the close of Ms.
Johnson's evidence, the trial court granted ACS's
motion for directed verdict, finding that Mr. Molbert was
commuting to work and was thus outside the course and scope
of his employment. From the judgment granting the directed
verdict, Ms. Johnson appeals. We affirm.
AND PROCEDURAL BACKGROUND
relevant facts in this case are undisputed. On the morning of
November 20, 2009, at approximately 6:30 a.m., the
above-described accident occurred on South Claiborne Avenue,
near the intersection of Martin Luther King, Jr., Boulevard,
in New Orleans, Louisiana. At the time of the accident, Mr.
Molbert was en route to work for ACS at Baptist
Hospital on Napoleon Avenue.After exchanging information with
the RTA bus driver, Mr. Molbert left the accident scene to
report to work. He did not wait for the police to arrive to
investigate the accident; however, he gave a statement to the
police that night.
to recover for the personal injuries she sustained as a
result of the accident, Ms. Johnson commenced this suit
against multiple defendants, including Mr. Molbert's
employer, ACS. She averred that, at the time of the accident,
Mr. Molbert was acting within the course and scope of his
employment. ACS denied liability and filed a motion for
summary judgment. Although ACS admitted that Mr. Molbert was
one of its employees, it denied that Mr. Molbert was acting
within the course and scope of his employment. It contended
that, because Mr. Molbert was commuting to work, he was
outside the course and scope of his employment.
the trial court's judgment denying the motion for summary
judgment, ACS filed an application for supervisory writ. This
court denied ACS's writ application. By a split vote, the
Louisiana Supreme Court likewise denied ACS's writ
application. Johnson v. Transit Mgmt. of Southeast
Louisiana Inc., 13-2752 (La. 2/7/14), 131 So.3d 870.
Before trial, ACS re-urged its motion for summary judgment.
The trial court again denied the motion for summary judgment.
2017, a jury trial commenced in this case. At trial, Mr.
Molbert was the sole witness to testify regarding his
employment with ACS and the circumstances surrounding his
commute to work on the morning of the accident. He testified
that, at the time of the accident, he was employed by ACS as
a nurse anesthetist. He had a fixed place of employment; he
worked for ACS at Baptist Hospital on Napoleon Avenue.
morning of the accident, he was scheduled to be on call
starting at 7:00 a.m. One hour before he went on call (at
6:00 a.m.), he received a telephone call at home from his
boss, requesting that he come into work to handle a case
involving a college student who needed an appendectomy. As a
result of the call, Mr. Molbert testified that he left home
for work that morning about fifteen minutes earlier than
reaching work, he was involved in the above-described
accident. Mr. Molbert estimated the time of the accident to
be between 6:20 and 6:30 a.m. According to Mr. Molbert, he
was approximately five to ten minutes from work, depending on
the traffic, when the accident occurred.
Molbert described being on call as a routine part of his job
with ACS. He explained that, when he was on call, the
circumstances-how busy his department was-determined his work
schedule. Tentatively, he could come into work later than
usual (at 9:30 a.m.); however, if his department was very
busy, he would come into work, while on call, at his usual
start time (then 7:00 a.m.).
Molbert was an hourly-paid employee of ACS. His pay period,
even when he was on call, did not commence until he checked
in at work. At the time of the accident, he had not yet
checked in at work; hence, he was not being paid. At the time
of the accident, Mr. Molbert testified that he considered
himself to be on personal, not work, time.
Molbert owned the vehicle that he was driving at the time of
the accident-a pick-up truck. ACS did not pay any portion of
the purchase price of the vehicle. Mr. Molbert paid the
maintenance, repairs, gas, and all of the other expenses for
the vehicle. ACS did not reimburse Mr. Molbert for any
expenses of ownership of the vehicle or for any of his
transportation or mileage expenses.
Molbert testified that he decided what route to take to work
on the morning of the accident and that he took his regular
route. He explained that he took the same route to work five
days a week, including when he was on call. His regular job
duties did not involve driving, running errands, or making
deliveries for ACS. At the time of the accident, he was not
making any deliveries or doing anything for ACS; he had not
made any stops between leaving his home that morning and the
scene of accident
close of Ms. Johnson's evidence, ACS moved for a directed
verdict. In support, ACS repeated the argument it raised on
its motions for summary judgment-that Mr. Molbert was
commuting to work and thus outside the course and scope of
his employment. Citing Mclin v. Industrial Specialty
Contractors, Inc., 02-1539 (La. 7/2/03), 851
So.2d 1135 as controlling, the trial court
granted the motion for directed verdict. In so doing, the
trial court judge orally reasoned as follows:
In McLin, the Supreme Court case cited seven
criteria to consider whether or not the person was coming and
going . . . and that was the test that was annunciated.
One, Molbert was the only one who testified, and his
testimony was uncontroverted as to his time of reporting to
work, and all the factors concerning his commute to work. He
was not felt [sic] on his employee's premises, according
to McLin. He was not on a specific mission for his
employer. He was going to work to report to his employer.
There was no reimbursement for travel expenses and the
employer did not provide transportation. There was no implied
employer consent under the circumstances while driving to
work or while doing work. He wasn't traveling from one
work site to another. The accident was not immediately
adjacent to the place of employment. And there was no travel
risks going to that place of employment. And the operation of
the motor vehicle was not duties performed pursuant to his
employment, i.e. he was not performing any duties
for the employer at the time he was in route to his job.
the trial court entered a written judgment, dated July 6,
2017, granting the directed verdict and dismissing ACS as a
defendant with prejudice. This appeal followed.
appeal, Ms. Johnson's sole assignment of error is that
the trial court legally erred in granting ACS's motion
for directed verdict. In a jury trial, a party may move for
directed verdict at the close of an opponent's evidence.
La. C.C.P. art. 1810. The motion for directed verdict is a
procedural device available in a jury trial to promote
judicial economy. Seither v. Winnebago Indus., Inc.,
02-2091, p. 3 (La.App. 4 Cir. 7/2/03), 853 So.2d 37, 39
(citing Reed v. Columbia/HCA Information Sys., Inc.,
00-1884 (La.App. 5 Cir. 4/11/01), 786 So.2d 142). Thus, the
motion is appropriately made when the evidence overwhelmingly
points to one conclusion. Madison v. Ernest N. Morial
Convention Ctr.-New Orleans, 00-1929, 01-1127, p. 23
(La.App. 4 Cir. 12/4/02), 834 So.2d 578, 593 (citing
Hebert v. BellSouth Telecomms., Inc.,
01-0223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614).
trial court should grant the motion for directed verdict
"when, after considering all evidentiary inferences in
the light most favorable to the non-moving party, it is clear
that the facts and inferences so overwhelmingly favor a
verdict for the movant, that reasonable jurors could not have
arrived at a contrary conclusion." Everhardt v.
Louisiana Dep't of Transp. & Dev., 07-0981, p.
13 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047 (citing
Thomas v. A.P. Green Indus., Inc., 05-1064,
p. 19 (La.App. 4 Cir. 5/31/06), 933 So.2d 843, 858).
Thomas, supra, this court enunciated the
standard of review on appeal of a judgment granting a
directed verdict as follows:
The standard of review on appeal of a directed verdict is
whether reasonable persons could not reach a contrary verdict
under the evidence. Davis v. Board of Supervisors of
Louisiana State University and Agricultural and Mechanical
College, 2003-2219, pp. 7-8 (La.App. 4 Cir. 11/17/04),
887 So.2d 722, 727. The question to be asked by the appellate
court is not whether plaintiff proved his case by a
preponderance of the evidence, but rather, whether upon
reviewing the evidence submitted, the court could conclude
that reasonable persons could not have reached a verdict in
favor of plaintiffs. Id. The appellate court also
must determine if the record supports the granting of a
directed verdict, based not on a credibility determination (a
factual issue), but on a sufficiency of evidence
determination (a question of law). Id.; Lott v.
Lebon, 96-1328, p. 4 (La.App. 4 Cir. 1/15/97), 687 So.2d
612, 616. A directed verdict should be sustained on appeal
where the reviewing court would find a jury verdict in favor
of the party opposing the motion to be manifestly erroneous
had the trial judge allowed the case to go to the jury.
Wichser v. Trosclair, 99-1929 (La.App. 4 Cir.
2/28/01), 789 So.2d 24.
05-1064 at pp. 19-20, 933 So.2d at 858. Moreover, the
propriety of a directed verdict must be evaluated in light of
the applicable substantive law governing the plaintiff's
claim. Everhardt, 07-0981 at p. 14, 978 So.2d at
1047 (citing Tanner v. Cooksey, 42, 010, p.
6 (La.App. 2 Cir. 4/4/07), 954 So.2d 335, 339); Burris v.
Wal-Mart Stores, Inc., 94-0921, p. 5 (La.App. 1 Cir.
3/3/95), 652 So.2d 558, 561.
applicable substantive law governing Ms. Johnson's claim
against ACS is vicarious liability, which is codified in La.
C.C. art. 2320. "In Louisiana, as elsewhere, an employer
(master) is liable for a tort committed by his employee
(servant) if, at the time, the servant is acting within the
scope of his employment-acting, as our Civil Code Article
2320 phrases it, 'in the exercise of the functions in
which . . . employed.'" LeBrane v. Lewis,
292 So.2d 216, 217 (La. 1974). An employer is answerable for
its employee's negligent acts "when the conduct is
so closely connected in time, place, and causation to the
employment duties of the employee that it constitutes a risk
of harm attributable to the employer's business."
Orgeron v. McDonald, 93-1353, p. 4 (La. 7/5/94), 639
So.2d 224, 227 (citing LeBrane, supra).
the course and scope of one's employment is intensely
fact specific; it must be done on a case-by-case basis."
Thomas C. Galligan, Jr., A Primer on the Patterns of
Louisiana Workplace Torts, 55 La. L. Rev. 71, 73 (1994).
In making the course-and-scope determination, the Louisiana
Supreme Court has identified the following, non-exclusive
list of relevant factors to be considered:
. the payment of wages by the employer;
. the employer's power of control;
. the employee's duty to perform the
. the time, place, and purpose of the act in
relation to service of the ...