FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 2015-1253 HONORABLE LAURIE A. HULIN, DISTRICT
Gregory Carl Weiss Weiss & Eason, L.L.P. Counsel for
Defendant/Appellant: Walgreen Louisiana Company, Inc.
Marie LeBlanc Caraway LeBlanc, L.L.C. Counsel for
Defendant/Appellant: Walgreen Louisiana Company, Inc.
L. Viviano, Jeffery J. Guidry Counsel for Defendant/Appellee:
R. David, Robert B. Brahan, Jr. Broussard & David, LLC
Counsel for Plaintiff/Appellee: Karen Sue Thibodeaux.
composed of Elizabeth A. Pickett, Billy Howard Ezell, Phyllis
M. Keaty, John E. Conery, and Van H. Kyzar, Judges.
PHYLLIS M. KEATY JUDGE.
Walgreen Louisiana Company, Inc, (Walgreens), appeals a
judgment denying its motion for summary judgment and granting
the plaintiff's cross-motion for partial summary judgment
based upon its finding that Walgreens is vicariously liable
for any injuries or damages sustained by plaintiff as a
result of an automobile accident caused by a Walgreens
employee. For the following reasons, we affirm.
AND PROCEDURAL HISTORY
Karen Sue Thibodeaux, was involved in a May 2, 2014
automobile accident in Lafayette, Louisiana, when her vehicle
was struck by another vehicle being driven by Vivian Boutte,
who was at the time employed by Walgreens. The accident
occurred as Ms. Boutte was headed back to her home in
Napoleonville after attending a training course recommended
by her boss. A police officer who responded to the scene
issued a citation to Ms. Boutte for failure to yield. As a
result of the injuries she sustained in the accident,
Plaintiff filed suit against Ms. Boutte and her automotive
liability insurer, GEICO Casualty Company. Plaintiff also
named Walgreens as a defendant, alleging that Ms. Boutte was
in the course and scope of her employment with Walgreens when
the accident occurred, thus making it vicariously liable for
the damages caused by Ms. Boutte's actions. Walgreens
denied that Ms. Boutte was in the course and scope of her
employment at the time of the accident and claimed it had no
liability for Ms. Boutte's negligence.
and Plaintiff filed cross-motions for summary judgment on the
issue of Walgreen's vicarious liability for Ms.
Boutte's actions. In her motion for partial summary
judgment, Plaintiff also claimed that Ms. Boutte's
negligence was the sole legal cause of the accident.
a hearing, the trial court rendered judgment on June 1, 2017,
denying Walgreens' motion for summary judgment and
granting Plaintiff's cross-motion for partial summary
judgment based upon its findings: "(1) that Vivian
Boutte was in the course and scope of her employment with
Walgreens at the time of this May 2, 2014 incident; (2) that
Walgreens is vicariously liable for any injuries or damages
sustained by plaintiff caused by the incident; and (3) that
Vivian Boutte was the sole legal cause of this
incident." Walgreens appealed and is now before this
court asserting the following assignments of
1. The trial judge erred in failing to apply the eight
Orgeronfactors which would have dictated a finding
that Ms. Boutte was not in the course and scope of her
employment with Walgreens at the time of the incident and
resulted in the granting of Walgreens' Motion for Summary
Judgment and the denial of Plaintiff's Cross-Motion.
2. The trial judge erred in applying a broad rather than
strict construction of the term "course and scope of
employment" which would have resulted in the granting of
Walgreens' Motion for Summary Judgment, and the denial of
3. Alternatively, the trial judge erred in not finding a
genuine issue of material fact as to whether Ms. Boutte was
in the course and scope of her employment resulting in the
denial of both summary judgment motions.
"The summary judgment procedure is designed to secure
the just, speedy, and inexpensive determination of every
action . . . . The procedure is favored and shall be
construed to accomplish these ends." La.Code Civ.P. art.
966(A)(2). "After an opportunity for adequate discovery,
a motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no
genuine issue as to material fact and that the mover is
entitled to judgment as a matter of law." La.Code Civ.P.
The burden of proof rests with the mover. Nevertheless, if
the mover will not bear the burden of proof at trial on the
issue that is before the court on the motion for summary
judgment, the mover's burden on the motion does not
require him to negate all essential elements of the adverse
party's claim, action, or defense, but rather to point
out to the court the absence of factual support for one or
more elements essential to the adverse party's claim,
action, or defense. The burden is on the adverse party to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(D)(1). "Appellate courts review
summary judgments de novo under the same criteria that govern
a district court's consideration of whether summary
judgment is appropriate." Larson v. XYZ Ins.
Co., 16-745, p. 6 (La. 5/3/17), 226 So.3d 412, 416.
Accordingly, we need not address Walgreens' assignments
individually, but rather, we will discuss them as necessary
in our discussion of whether either Plaintiff or
Walgreens' met the burden of proving their entitlement to
Civil Code Article 2320 provides, in pertinent part, that
"Masters and employers are answerable for the damage
occasioned by their servants . . ., in the exercise of the
functions in which they are employed."
In the application of Article 2320, an employer's
vicarious liability for conduct not his own extends only to
the employee's tortious conduct which is within the
course and scope of employment. . . . Generally speaking, an
employee's conduct is within the course and scope of his
employment if the conduct is of the kind that he is employed
to perform, occurs substantially within the authorized limits
of time and space, and is activated at least in part by a
purpose to serve the employer.
Orgeron, 639 So.2d at 226-27 (citations omitted).
employer is generally not liable for acts committed by its
employee while the employee is going to or coming from
work." Voinche v. Capps, 14-671, p. 5 (La.App.
3 Cir. 12/10/14), 155 So.3d 146, 151. In discussing that
general rule, the supreme court noted that "an
employee's place of residence is a personal decision not
directly controlled by the employer, and treating commuting
time as part of the determination of course and scope of
employment would remove manageable boundaries from the
determination." Orgeron, 639 So.2d at 227. As
this court noted in Voinche, however, application of
that general rule "becomes more complicated" when
an employer sends its employee to a different location than
where that employee normally works. Voinche, 155
So.3d at 151. This court has observed:
As has been stated many times in the jurisprudence and by
textbook writers, there is no precise rule or definition by
which we can determine in every instance whether the employee
driver of a motor vehicle is acting within the scope of his
employment. Each case must be decided largely on its own
facts, keeping in mind the basic idea that the use of the
vehicle at the time must have been in the service of the
employer or while about the employer's business.
Rollins v. New York Fire & Marine Underwriters,
Inc., 225 So.2d 663, 670 (La.App. 3 Cir. 1969), writ
refused, 227 So.2d 595 (La.1969).
discussion of the course and scope issue in Orgeron,
the supreme court reiterated its prior pronouncement that
"[a]n employer is responsible for the negligent acts of
its employee 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, 639
So.2d at 227 (citing LeBrane v. Lewis, 292 So.2d 216
(La.1974)). Thereafter, the Orgeron court provided a
non-exclusive list of eight factors courts should assess
"in determining whether the employee's conduct is
[T]he 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 employer, the relationship between
the employee's act and the employer's business, the
benefits received by the employer from the act, the
motivation of the employee for performing the act, and the
reasonable expectation of the employer that the employee
would perform the act.
Id. Unlike the liberal construction courts are to
give the phrase "'within the course and scope'
of  employment duties" in workers' compensation
cases, a strict interpretation of the phrase is called for
where a tort victim seeks to have an employer held
vicariously liable for the conduct of its employee. Senac
v. State Farm Mut. Auto. Ins. Co., 09-320, p. 4
(La.App. 3 Cir. 10/7/09), 22 So.3d 1124, 1127.
Boutte's deposition was the primary evidence entered both
in support of and in opposition to the cross-motions for
summary judgment. Ms. Boutte, a licensed pharmacist, stated
that, on the date of the accident, she worked for Walgreens
as a salaried employee in its Morgan City location. She
explained that her pharmacy manager asked her to attend a
training class on how to perform cholesterol testing, a
service that Walgreens wanted to offer its customers for a
fee. The class was being taught at the Walgreens headquarters
in Lafayette, the Walgreens' "scheduler, " Rene
Nuss, told her that she "needed to come in and get that
additional training, " and Ms. Nuss made the
arrangements for Ms. Boutte to attend that particular
training session. She drove her personal vehicle to the
training and submitted her mileage for reimbursement. Ms.
Boutte confirmed that the Morgan City store where she worked
had the equipment needed to do the cholesterol testing that
she was being trained to perform. On the day of the accident,
Ms. Boutte worked at the Morgan City store until about 1:00
p.m. before driving to attend the training in Lafayette. A
Walgreens' employee provided the training, which began at
3:00 p.m. and lasted between thirty and forty-five minutes.
Ms. Boutte recalled speaking with a Walgreens' manager
for about twenty minutes before leaving for her home in
Napoleonville, which was approximately ninety miles from
Lafayette. She stated that she was driving cautiously because
she "didn't know anything" about Lafayette.
brief to this court, Walgreens admits that there are no
reported Louisiana cases involving the exact factual
situation presented in this appeal. Walgreens argues that
application of the Orgeron factors should lead this
court to reverse the trial court judgment finding that Ms.
Boutte was in the course and scope of her employment when the
accident occurred. It points out that Ms. Boutte's shift
at its Morgan City store had ended approximately three and
one-half hours before the accident occurred and that she was
not paid wages during her attendance at the training nor for
her travel time to and from the training. It admits, however,
that Ms. Boutte was reimbursed for her mileage. Walgreens
suggests that the training was optional, that Ms. Boutte was
not required to attend the training to keep her job, that the
training "does not show up in her personnel file, "
and that the "motivation of Ms. Boutte was entirely
personal and specifically to enhance her overall performance
as a pharmacist, not to benefit Walgreens." It points
out that the 'training was not conducted by either [Ms.
Boutte's] pharmacy or district manager, but [by] a
Walgreens' employee she did not know" and that
testing "equipment used during the training was
outdated, so the trainees could not check the results."
Finally, Walgreens states that "[n]o cholesterol testing
was performed at the store where Ms. Boutte worked through
the time she left Walgreens' employment almost two years
later, and Walgreens was actually backing off of actually
performing these tests in general because it was rarely done
at most of its stores."
little merit to Walgreens' arguments. When an employee is
told by a supervisor that he or she needs a certain type of
training, that employee can hardly be expected to disregard
the suggestion or to inquire whether their job depends upon
completion of that training. And while there is often an
element of personal enhancement when an employee attends a
training class, Walgreens' suggestion that Ms. Boutte
attended the class for "entirely personal" reasons
borders on the absurd. Even more ridiculous is Walgreens'
suggestion that Ms. Boutte's training should have been
conducted by a Walgreens' employee that she personally
knew. Walgreens puts much emphasis on the fact that no
cholesterol testing was ever performed at the Morgan City
location where Ms. Boutte worked. We find this logic to be
disingenuous, as that information was gained in hindsight,
and the fact remains that Ms. Boutte's supervisor asked
her to attend the training, which the Walgreens'
scheduler set up for May 2, 2014. Moreover, Walgreens could
not have offered the testing to its customers if it had not
trained its pharmacists in how to conduct such testing, and
the fact that it apparently made a business decision to
discontinue cholesterol testing, when it never really
embraced that endeavor in the first place, can certainly not
factor into our course and scope of employment analysis.
Similarly, the fact the equipment on hand at its training
facility was outdated when Walgreens conducted the
cholesterol training of its employees reflects poorly on
Walgreens. Finally, because Walgreens controlled what was
placed in its employee's records, we attach little
significance to the fact that any information regarding Ms.
Boutte having completed the cholesterol training was not in
her personnel file.
other hand, our assessment of the Orgeron factors to
the facts before us convince us that Plaintiff met her burden
of proving the absence of genuine issues of material fact and
that she was entitled to judgment as a matter of law finding
that Ms. Boutte was in the course and scope of her employment
with Walgreens when the accident occurred. The cholesterol
training class which was held at Walgreens' headquarters
in Lafayette was obviously "related to the service"
of Walgreens in "time place and purpose;" Ms.
Boutte's act of attending the training bore a strong
"relationship" with Walgreens' business; Ms.
Boutte's motivation for completing the training was to
follow her supervisor's directions; and it is more than
reasonable for Walgreens to expect that Ms. Boutte's
would "perform the act" of completing the training
her supervisor requested that she take. Orgeron, 639
So.2d at 227. We note ...