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Johnson v. Transit Management of Southeast Louisiana, Inc.

Court of Appeals of Louisiana, Fourth Circuit

February 28, 2018


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-10624, DIVISION "0" Honorable Kern A. Reese, Judge


          William H. Eckert Michael J. Tarleton Daniel G. Collarini ECKERT & TARLETON, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins

          Rosemary Ledet Judge

          This 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, LLC ("ACS").[1]

         A jury 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.[2] We affirm.


         The 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.

         Seeking 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.

         From 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.

         In May 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.

         On the 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 usual.

         Before 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.

         Mr. 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.).

         Mr. 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.

          Mr. 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.

         Mr. 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[3]

          At the 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[4] 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.

         Thereafter, 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.


         On 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.[5] 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).

          A 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).

         Standard of review

         In 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.

         Vicarious liability

         The 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).

         "Determining 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 particular act;
. the time, place, and purpose of the act in relation to service of the ...

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