The opinion
MICHAEL E. DURONSLET * NO. 2022-CA-0019
VERSUS *
COURT OF APPEAL
WAL-MART STORES, INC. *
AND MARLIN N. GUSMAN, FOURTH CIRCUIT
SHERIFF FOR PARISH OF *
ORLEANS STATE OF LOUISIANA
*******
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-05958, DIVISION “B-5”
Honorable Rachael Johnson
******
Judge Dale N. Atkins
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Dale
N. Atkins)
BELSOME, J., DISSENTS WITH REASONS
Vallerie Lynn Oxner
ATTORNEY AT LAW
3500 North Hullen Street, Suite 17-A
Metairie, LA 70002
COUNSEL FOR PLAINTIFF/APPELLANT, Michael E. Duronslet
Isidro Rene' DeRojas
Christopher James-Lomax
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch
909 Poydras Street, Suite 1000
New Orleans, LA 70012
COUNSEL FOR DEFENDANT/APPELLEE, Walmart Inc. (f/k/a Wal-Mart
Stores, Inc.)
AFFIRMED
July 27, 2022
DNA
DLD
This is an alleged personal injury case that also maintains claims asserting
violations of La. R.S. 51:1401, et seq., which contain the Louisiana Unfair Trade
Practices and Consumer Protection Law; La. R.S. 51:2247, et seq., which prohibit
discriminatory practices in public accommodations; and the United States
Constitution. Appellant, Michael E. Duronslet (hereinafter “Mr. Duronslet”),
appeals the trial court’s July 30, 2021 judgment, which granted the Motion for
Partial Summary Judgment filed by Appellee, Walmart, Inc. (hereinafter
“Walmart”).1 For the following reasons, we affirm the trial court’s judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
June 20, 2017 Petition
Mr. Duronslet initiated this legal proceeding with the filing of a Petition in
the Civil District Court for the Parish of Orleans on June 20, 2017. He named
Walmart and Marlin Gusman, in his capacity as Sheriff of the Parish of Orleans, as
defendants. In the Petition, Mr. Duronslet stated that he went to the Walmart store
located on Chef Menteur Highway in New Orleans, Louisiana, on the evening of
1 In his Petition, which is discussed more fully hereinafter, Mr. Duronslet
named “Wal-Mart Stores, Inc.” as one of the defendants. The record indicates that
“Wal-Mart Stores, Inc.” is now known as “Walmart, Inc.” This Opinion will use a
shortened version with the spelling “Walmart.”
1
June 23, 2016, for the purpose of picking up a prescription from the pharmacy
inside the store. According to the Petition, after Mr. Duronslet picked up his
prescription, he realized that the prescription was only “partially filled;” so Mr.
Duronslet tried to communicate with the pharmacist, “who was closing down for
the night, [and] ignore[d] [Mr. Duronslet].” Mr. Duronslet further alleged in the
Petition that he “also asked to speak to the manager,” who “did not respond.”
Mr. Duronslet contended in the Petition that thereafter a Walmart employee
called for an Orleans Parish Sheriff’s deputy who was working a security detail at
the store. In the Petition, Mr. Duronslet asserted that subsequently:
The Orleans Parish Sheriff’s deputy, without provocation, grabbed the
plaintiff,[2] threw the plaintiff on the floor, pushed his knee into the
plaintiff’s back, and handcuffed the plaintiff.
....
The Sheriff’s deputy then took the plaintiff into a private room where
he and an employee of [Walmart] threatened to arrest the plaintiff
unless he signed a Notification of Restriction from Property stating
that the plaintiff was prohibited from entering any [Walmart] store,
and advising him that he is no longer allowed on property owned by
[Walmart]. The Notification of Restriction [from] Property also stated
that if he entered a [Walmart] store, he could be charged with criminal
trespass.
Mr. Duronslet alleged in the Petition that though he signed the Notification of
Restriction from Property (hereinafter “Notification”), he did so “under duress.”
In pertinent part, in the Petition, Mr. Duronslet also asserted that the deputy
“was at all times subject to the direction and control of [Walmart], and his actions
were therefore performed in the course and scope of his employment with
[Walmart].” Additionally, Mr. Duronslet alleged that he sustained injuries to his
back and shoulder, as well as embarrassment, humiliation, and mental anguish. He
2 In the Petition, “plaintiff” refers to Mr. Duronslet.
2
contended that Walmart violated the Louisiana Unfair Trade Practices and
Consumer Protection Law, La. R.S. 51:1401, et seq; discriminated against him in
violation of La. R.S. 51:2247, et seq.;3 and deprived him of his rights, privileges,
and immunities guaranteed by the United States Constitution.
Walmart’s October 18, 2019 Third-Party Demand
On October 18, 2019, Walmart filed a “Motion for Leave to File Third-Party
Demand,” (hereinafter “Third-Party Demand”) wherein Walmart alleged that “U.S.
Security Associates, Inc. [(hereinafter “U.S. Security”)], an independent third party
contractor, was the employer of the Orleans Parish Sheriff’s Deputy involved in
[Mr. Duronslet]’s incident” and that the deputy “was assigned to work a paid
security detail at the Chef Menteur Highway Walmart.” Additionally, Walmart
asserted that “[a]t all relevant times, a Security Services Master Agreement
[(hereinafter “Security Agreement”)] existed between Walmart and U.S. Security”
whereby U.S. Security agreed to provide security services to Walmart. Walmart
attached the Security Agreement and a “Security Services Addendum to the
Security Services & Systems Master Agreement” (hereinafter “Addendum”) as
exhibits to the Third- Party Demand.
Security Agreement
The Security Agreement between Walmart and U.S. Security provided, in
pertinent part:4
THIS SECURITY SERVICES MASTER AGREEMENT
(“Contract”) is made this 1st day of October, 2004, by and between
3 Louisiana Revised Statutes 51:2247 is titled “[p]ublic accommodations,
resorts, amusements; discriminatory practices prohibited.” It is found in Chapter 38
(“Louisiana Commission on Human Rights”) of Title 51 (“Trade and Commerce”)
of the Louisiana Revised Statutes.
4 The Security Agreement refers to U.S. Security as “Contractor.”
3
[Walmart], its subsidiaries, divisions, stores, and affiliated companies
. . . and U.S. Security . . . . (“Contractor”).
....
1. DESCRIPTION OF SERVICES. Contractor shall perform,
on a non-exclusive basis, all security services as more fully described
on the applicable ADDENDUM(S), and for the specific locations,
identified in the applicable ADDENDUM(S), attached to and
incorporated in, this Contract (the “Services”). As used herein, the
term “Contract” shall include this Master Agreement and each
ADDENDUM(S) hereto. All Services shall be performed in strict
accordance with the provisions and terms of this Contract. . . .
2. Term. This contract shall be in force for one (1) year from
the Effective Date (as defined herein) and shall continue thereafter on
a month-to-month basis on the same terms and conditions, until
terminated by either party. Each party may terminate this contract or
any month-to-month extension thereof without cause with thirty (30)
days’ prior written notice specifying the date this termination is to be
effective. The “Effective Date” shall mean the date on which this
[Security Agreement] is executed by an authorized officer of
[Walmart]. . . . In the event of a material breach by Contractor,
[Walmart] reserves the right to terminate this Contract immediately.
The parties acknowledge and agree that both parties have the absolute
right to either terminate this Contract in its entirety or to terminate one
or more ADDENDA, and any reference herein to the right to
terminate this Contract shall be deemed to provide such party with
such partial termination rights.
3. PRICE AND PAYMENT. [Walmart] shall pay to Contractor
for its performance of the Services the rates in the schedule set forth
in the ADDENDUM(S). . . .
4. INDEPENDENT CONTRACTORS. [Walmart] and
Contractor enter into this Contract as independent contractors and at
arms’ length. Neither [Walmart] nor Contractor has the right, and
shall not seek, to exercise any control over the other party, its
employees, or its agents. Contractor shall control the methodology for
performing the Services to meet [Walmart]’s specifications and
Contractor’s Scope of Work in the ADDENDUM(S). Each party shall
be solely responsible for hiring, firing, promoting, demoting, rates of
pay, benefits, and other terms and conditions in regard to its own
employees. Neither Contractor nor any of its employees or agents may
be considered [Walmart]’s agents or employees for any purpose and
have no authority to act or purport to act on [Walmart]’s behalf.
Neither Contractor nor its employees or agents are entitled to receive
any benefits, including but not limited to salary, vacation pay, sick
leave, retirement benefits, social security, workers’ compensation,
4
health, disability, unemployment, and stock options, that [Walmart]
may provide to its employees.
....
6. QUALITY OF SERVICES. Day-to-Day and operational
management of the Services shall be within the sole control of
Contractor. Contractor shall perform the Services in a professional
and workman-like manner. . . . Services must meet the approval of
[Walmart] and shall be subject to [Walmart]’s general right of
inspection and supervision to secure the satisfactory completion
thereof. Contractor shall use the best practices acknowledged in the
industry and shall adhere to [Walmart]’s policies and specifications
regarding the Services. . . .
....
10. EQUIPMENT. Contractor shall provide all necessary
equipment, including equipment repair and maintenance, to perform
the Services. . . .
The Controller of U.S. Security and the Vice President, Global Security, of
Walmart signed the Security Agreement on October 24 and 26, 2004, respectively.
Attached to the Security Agreement is the Addendum.
Addendum
The Addendum, which is dated October 13, 2015, provided, in pertinent
part, that U.S. Security would provide security services at the Walmart store
located on Chef Menteur Highway in New Orleans, Louisiana, with a start date of
July 7, 2014. Further, it stated that U.S. Security “shall equip all security guard(s)
performing services under this Addendum with Contractor’s standard company
issued uniform, attire, operating supplies, and equipment for security guards.” The
Addendum called for U.S. Security to provide one law enforcement officer per
shift whose guard “duties will be to staff a post at the front entrance or periodically
walk around the sales floor as directed by the store management team, providing a
visible deterrent to criminal activity.” In performance of the duties, the Addendum
5
explained that the guard “may take any precaution the security guard(s), in their
professional judgment, determine is necessary to protect themselves, customers,
and [Walmart] associates.” Additionally, the Addendum provided the rate of pay
for the guards. The Senior Vice President of U.S. Security and the Director,
Security and Risk, of Walmart signed the Addendum on November 2 and 17, 2015,
respectively.
Mr. Duronslet’s July 20, 2020 Deposition
On July 20, 2020, Mr. Duronslet submitted to a deposition, at which he
testified that he went to the Walmart store on Chef Menteur in New Orleans on
June 23, 2016, to pick up a prescription. He stated that he asked for the
prescription; two pharmacy employees, one of which he identified as male and the
other he identified as female, did not give him the prescription; he waited and “[a]t
least 15 minutes” passed; and then the two pharmacy employees “were packing up
to leave” and “walked to the door” to leave the pharmacy without acknowledging
him.5 Mr. Duronslet explained that he then “kept asking” the pharmacy employees
“[a]t least five times” for his medicine but that they “pretty much kept walking.”
Mr. Duronslet testified that he “kept [] trying to make sure that they saw [him]. So
[he] would occasionally get right in front of [the male pharmacy employee and] . . .
was trying to get [his] face to where [the male pharmacy employee] could see
[him] because [the male pharmacy employee] acted like he [could not] hear [Mr.
Duronslet].” Mr. Duronslet stated that, thereafter, the female pharmacy employee
5 Mr. Duronslet’s deposition testimony indicated that he did not receive his
prescription prior to the pharmacy employees leaving, whereas his Petition alleged
that he received his prescription prior to the pharmacy employees leaving but that
the prescription was only partially filled.
6
alleged aloud that Mr. Duronslet grabbed the male pharmacy employee and then
“[s]he left.”
Mr. Duronslet testified that subsequently, “there was a scene” with “50”
other customers watching because he “was being very loud;” was “probably”
yelling; called out “loud[ly]” asking to speak to a manager; and could be heard by
other people in the store. He explained that a deputy arrived at the scene. Mr.
Duronslet testified that he “[did not] know” what brought the deputy to the scene
and could not affirmatively say that a Walmart employee asked the deputy to the
scene. Further, Mr. Duronslet stated that he “[did not] think” the deputy was
standing with any Walmart employees when the deputy arrived at the scene. He
testified that subsequently “there was some sort of interaction with a guy who was
around that area and the [deputy]” but when asked whether the man was a Walmart
employee, Mr. Duronslet responded, “I really [do not] know.” Mr. Duronslet
stated that the deputy called him over and thereafter “[the deputy] grabbed [him]”
and that “there was some physical contact with [the deputy]” which resulted in Mr.
Duronslet “going on the floor . . . .” He explained that afterward the deputy placed
him in handcuffs. Mr. Duronslet testified that he did not hear any Walmart
employee request or suggest that the deputy make physical contact with him or put
him in handcuffs. Additionally, when asked whether “any Walmart personnel
[were] around” during the “altercation,” Mr. Duronslet responded, “I [cannot]
answer that.”
After describing the alleged physical contact, Mr. Duronslet testified that the
deputy “indicated he wanted [Mr. Duronslet] to go with him to [the] security
office” inside the Walmart. Mr. Duronslet explained that the deputy physically
escorted him to the security office and that he thought a Walmart employee came
7
into the security office only after he and the deputy arrived but that he “[could not]
exactly remember” that a Walmart employee accompanied them on the walk to the
security office. He testified that the deputy “wanted” him to sign the Notification;
and Mr. Duronslet stated that no Walmart employee was involved in asking him to
sign the Notification. When asked to clarify whether there was a Walmart
employee inside the security office with him and the deputy, Mr. Duronslet
explained that “[I am] [] nebulous about that . . . because they were not engaged.
There may have been somebody there, but there was no conversation, no
interaction. [It is] almost like maybe they might have been there to put a coat on or
something and then left.” Mr. Duronslet testified that after signing the Notification,
“that was the end of it,” and he went home.
Walmart’s April 23, 2021 Motion for Partial Summary Judgment
On April 23, 2021, Walmart filed a “Motion for Partial Summary
Judgment.” In its Memorandum in Support, Walmart contended, in pertinent part,
that “[U.S. Security], an independent party contractor, was the employer of the
Orleans Parish Sheriff’s Deputy involved in [Mr. Duronslet]’s incident . . . .”
Walmart argued that it was not an employer of the deputy; instead, Walmart
asserted that the deputy was an independent contractor. Additionally, Walmart
contended that as a principal, rather than an employer, it was not vicariously liable
for the actions of the deputy as an independent contractor. In support of its
contention that U.S. Security and, by extension, U.S. Security’s employees were
independent contractors, Walmart then recited the previously-quoted “Independent
Contractor” section of the Security Agreement. In sum, Walmart argued that
summary judgment was appropriate and that Walmart was not liable for the
deputy’s alleged actions because “based on the unambiguous language in the
8
[Security Agreement,]” U.S. Security and its employees were independent
contractors of Walmart.
Attached to the Motion for Partial Summary Judgment as exhibits were the
transcript of Mr. Duronslet’s July 20, 2020 deposition; the Security Agreement;
and the Addendum. Additionally, Walmart attached an affidavit from David
Russell Hinds, who identified himself as the Senior Manager of Facility Security
for Walmart. In his affidavit, Mr. Hinds stated that the Security Services
Agreement and Addendum are kept in the ordinary course of business at Walmart.
Further, he stated that the Security Services Agreement and Addendum were in
effect at the time of the subject incident.
Mr. Duronslet’s July 7, 2021 Opposition to Walmart’s Motion for Partial
Summary Judgment and Affidavit
On July 7, 2021, Mr. Duronslet filed a “Memorandum in Opposition to
Motion for Partial Summary Judgment” (hereinafter “Opposition”). Therein he
argued that genuine issues of material fact made the granting of summary
judgment improper. In particular he contended that the deputy’s work was not of
an independent nature and that Walmart retained the right of control. He further
asserted that the deputy “had the apparent authority to act on behalf of [Walmart].”
Attached to his Opposition was an affidavit by Mr. Duronslet, which was
dated July 7, 2021. In the affidavit, Mr. Duronslet stated, in pertinent part, that on
the date of the subject incident, “[w]hen the pharmacist continued to ignore him,
[he] asked to speak to a manager, [who] did not respond” and that the deputy
responded to Mr. Duronslet after the manager did not respond. Regarding the
contact the deputy allegedly made with him, Mr. Duronslet provided that “[t]he
actions of the deputy took place in full view of [Walmart] employees who failed to
9
intervene and who tacitly consented to the [] actions.” Further, Mr. Duronslet
stated in the affidavit that “[t]here were [Walmart] employees in the [security]
office during the time that [Mr. Duronslet] was restrained, and during which he
was forced to sign the [Notification] by the deputy. The [Walmart] employees all
saw and heard everything that took place, and none intervened to stop the deputy.”
Additionally, Mr. Duronslet contended in his affidavit that “[t]he tacit acceptance .
. . by the [Walmart] employees indicated to [Mr. Duronslet] that the deputy had the
apparent authority to act on behalf of [Walmart] to restrict [Mr. Duronslet]’s access
to any [Walmart] property.” The trial court considered Walmart’s Motion for
Partial Summary Judgment and Mr. Duronslet’s Opposition at a hearing on July
22, 2021.
July 22, 2021 Hearing on Walmart’s Motion for Partial Summary Judgment
On July 22, 2021, the trial court conducted a hearing on Walmart’s Motion
for Partial Summary Judgment. At the close of the hearing the trial court stated, in
pertinent part, that “the security contract is clear and unambiguous as it relates to
this independent contractor. [N]othing in the record . . . dispute[s] this. He is not a
Walmart employee. . . [T]he issue is appropriate for summary judgment.”
July 30, 2021 Judgment
On July 30, 2021, the trial court signed a judgment, which granted
Walmart’s Motion for Partial Summary Judgment and dismissed with prejudice
Mr. Duronslet’s claims against Walmart. The judgment stated:
This matter came on for hearing on the 22nd day of July, 2021
on the Motion for Partial Summary Judgment filed by Defendant,
Walmart Inc., f/k/a Wal-Mart Stores, Inc. (hereinafter referred to as
“Defendant”).
....
10
Based upon the motion, the argument of counsel, the entire
record, and the law, the Court being of the opinion that the law and
evidence are in favor of the Defendant, Walmart []:
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the Motion for Partial Summary Judgment of
Defendant, Walmart [], is GRANTED and all of Plaintiff’s claims
against Defendant, Walmart [], are DISMISSED with prejudice, at
Plaintiff’s costs.
Mr. Duronslet’s timely appeal of the judgment follows.
ASSIGNMENTS OF ERROR
On appeal, Mr. Duronslet raises three assignments of error:
1. The trial court erred in finding that the issue of whether the
deputy in this case is an independent contractor is an issue that
is appropriate for summary judgment.
2. The trial court erred in finding that the contract between
[Walmart] and U.S. Security [] was dispositive of the issue of
whether the deputy was an independent contractor.
3. The trial court erred in finding that the Orleans Parish Sheriff’s
deputy was an independent contractor for whom [Walmart] had
no liability.
Before considering the merits of the parties’ arguments, we address two
preliminary matters regarding the July 30, 2021 judgment.
FINAL, APPEALABLE JUDGMENT
Prior to addressing the merits of an appeal, appellate courts have the duty to
determine sua sponte whether their appellate court jurisdiction has been properly
invoked by a valid, final judgment. Bayer v. Starr Int’l Corp., 2017-0257, p. 3 (La.
App. 4 Cir. 8/15/17), 226 So.3d 514, 517 (citing Moon v. City of New Orleans,
2015-1092, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425; Tsegaye v. City of
New Orleans, 2015-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710; and
Delta Staff Leasing, LLC v. S. Coast Solar, LLC, 2014-1328, p. 1 (La. App. 4 Cir.
9/23/15), 176 So.3d 668, 668).
11
Valid Judgment - Proper Decretal Language
Louisiana Code of Civil Procedure Article 1918 pertains to the “[f]orm of
final judgment.” It provides that “[a] final judgment in accordance with Article
1841 shall be identified as such by appropriate language; shall be signed and dated;
and shall, in its decree, identify the name of the party in whose favor the relief is
awarded, the name of the party against whom the relief is awarded, and the relief
that is awarded.” That is, “[a] final, appealable judgment must contain the proper
decretal language.” Maqubool v. Sewerage & Water Bd. of New Orleans, 2018-
0572, p. 4 (La. App. 4 Cir. 11/14/18), 259 So.3d 630, 633. The appellate court
“must be able to determine from the judgment itself—without any reference to an
extrinsic source—the specific relief granted.” Tsegaye v. City of New Orleans,
2105-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710 (citing Bd. of
Supervisors of La. State Univ. & Agric. & Mech. Coll. v. Mid City Holdings,
L.L.C., 2014-0506, p. 3 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910).
Here, Appellant seeks review of the judgment rendered by the trial court on
July 30, 2021. As excerpted previously, that judgment provides against whom
(“Plaintiff”) and in whose favor (“Defendant, Walmart”) it awards relief. It also
provides the relief, which is the grant of Walmart’s Motion for Partial Summary
Judgment and dismissal of Mr. Duronslet’s claims with prejudice. Though Mr.
Duronslet is not identified by name in the decree (rather, the decree states that
“Plaintiff’s claims” are dismissed), use of the word “Plaintiff” indicates that this
refers to Mr. Duronslet because he is the only plaintiff in this matter. Cf. Hill Int’l
v. JTS Realty Corp., 2021-0157, p. 6 (La. App. 1 Cir. 12/30/21), ___ So.3d ___,
___, 2021 WL 6328321, at *3 (wherein the Louisiana First Circuit Court of Appeal
noted that “[i]n cases with multiple plaintiffs or defendants, the failure to name the
12
plaintiff(s) or defendant(s) for or against whom the judgment is rendered makes the
judgment fatally defective because one cannot discern from its face for or against
whom it may be enforced.”). Thus, the trial court’s July 30, 2021 judgment
contains the proper decretal language.
Final Judgment
Regarding judgments, La. C.C.P. art. 1915 provides, in pertinent part:
A. A final judgment may be rendered and signed by the court,
even though it may not grant the successful party or parties all of the
relief prayed for, or may not adjudicate all of the issues in the case,
when the court:
(1) Dismisses the suit as to less than all of the parties,
defendants, third party plaintiffs, third party defendants, or
intervenors.
....
(3) Grants a motion for summary judgment, as provided by
Articles 966 through 969, but not including a summary judgment
granted pursuant to Article 966(E).[ ]
....
B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to one or more
but less than all of the claims, demands, issues, or theories against a
party, whether in an original demand, reconventional demand, cross-
claim, third-party claim, or intervention, the judgment shall not
constitute a final judgment unless it is designated as a final judgment
by the court after an express determination that there is no just reason
for delay.
In discussing La. C.C.P. art. 1915, this Court has explained that it “divides partial
judgments into two groups: (1) those under Article 1915 (A), which lists six
specific types of partial final judgments that are appealable without being
designated as final by the trial court; and (2) those covered by Art. 1915 (B), which
provides that any other partial judgment (excluding those listed in Part A) is not
deemed to be final, and not subject to appeal, unless the trial court designates it as
13
such.” Cent. Bldg. Servs., LLC v. St. Augustine High Sch., Inc., 2018-0427, pp. 2-3
(La. App. 4 Cir. 10/17/18), 258 So.3d 103, 105 (quoting Andrew Paul Gerber
Testamentary Trust v. Flettrich, 2016-0065, pp. 4-5 (La. App. 4 Cir. 11/2/16), 204
So.3d 634, 637-38).
A trial court’s grant of a motion for summary judgment is considered a final
judgment per La. C.C.P. art. 1915(A)(3) “as long as it is not a partial summary
judgment on a particular theory or defense.” Anderson v. Laborde Constr. Indus.,
L.L.C., 2019-0356, 2018-1583, p. 9 (La. App. 1 Cir. 3/12/20), 311 So.3d 1072,
1079 n.9. If the grant of the motion for summary judgment concerns a particular
theory or defense, then “the judgment shall not constitute a final judgment unless it
is designated as a final judgment . . . .” La. C.C.P. art. 1915(B)(1). However, if the
trial court’s grant of a motion for summary judgment dismisses all of the claims
against a particular party, then it qualifies as a final judgment under La. C.C.P. art.
1915(A)(1) without the necessity of the trial court designating it as a final
judgment. In re LoCicero, 2010-0624, p. 4 (La. App. 4 Cir. 10/20/10), 51 So.3d
126, 128 (citing Jeansonne v. N.Y. Life Ins. Co., 2008-0932, pp. 8-9 (La. App. 3
Cir. 5/20/09), 11 So.3d 1160, 1167-68; Regency Motors of Metairie, L.L.C. v.
Hibernia-Rosenthal Ins. Agency, L.L.C., 2003-1312, pp. 4-5 (La. App. 5 Cir.
2/23/04), 868 So.2d 905, 907-08).
The July 30, 2021 judgment that Mr. Duronslet appeals herein states that “all
of Plaintiff’s claims against [Walmart] are DISMISSED with prejudice, at
Plaintiff’s costs.” The foregoing language demonstrates that the judgment
dismisses all of the claims against Walmart. Thus, it qualifies as a final judgment
subject to appeal under La. C.C.P. art. 1915(A)(1) even though the trial court did
not designate it as such. See In re LoCicero, 2010-0624, p. 4, 51 So.3d at 128;
14
Regency Motors of Metairie, L.L.C., 2003-1312, pp. 4-5, 868 So.2d at 907-08.
Thus, we conclude that our appellate jurisdiction has been properly invoked by a
valid, final judgment and turn to the merits.
STANDARD OF REVIEW
“The summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action . . . .” La. C.C.P. art. 966(A)(2). It
“is favored and shall be construed to accomplish these ends.” Id. “[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. C.C.P. art. 966(A)(3).
An appellate court applies the de novo standard of review in examining the
trial court’s ruling on a motion for summary judgment and utilizes “the same
criteria that govern the trial court’s determination of whether summary judgment is
appropriate.” Knox v. Elite Prot. Sols. & Willie’s Chicken Shack, LLC, 2021-0419,
p. 9 (La. App. 4 Cir. 10/13/21), ___ So.3d ___, ___, 2021 WL 4771758, at *4
(quoting Pilet v. Pilet Distrubs., 2020-0319, p. 5 (La. App. 4 Cir. 12/30/20), 312
So.3d 1154, 1159). On a motion for summary judgment, “[t]he burden of proof
rests with the mover.” La. C.C.P. art. 966(D)(1). However, “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,” then “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.” Id. It is only
after the motion has been made and properly supported that the burden shifts from
the mover to the adverse party. Knox, 2021-0419, p. 10, ___ So.3d ___, ___, 2021
15
WL 4771758, at *5 (quoting Pilet, 2020-0319, p. 6, 312 So.3d at 1159). Thereafter,
“the adverse party [must] 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. C.C.P. art. 966(D)(1). “[I]f the adverse party
fails to provide factual evidence sufficient to establish that he will be able to satisfy
his evidentiary burden of proof at trial, there is no genuine issue of material fact”
and summary judgment is appropriate. Knox, 2021-0419, pp. 9-10, ___ So.3d ___,
___, 2021 WL 4771758, at *5 (quoting Pilet, 2020-0319, p. 6, 312 So.3d at 1159).
A genuine issue is a triable issue. Id. “More precisely, an issue is genuine if
reasonable persons could disagree.” Id. However, “[i]f on the state of the evidence,
reasonable persons could reach only one conclusion, there is no need for a trial on
that issue.” Id. “A fact is material when its existence or non-existence may be
essential to the plaintiff’s cause of action under the applicable theory of recovery.”
Id. “Facts are material if they potentially insure or preclude recovery, affect a
litigant’s ultimate success, or determine the outcome of the legal dispute.” Id.
“Because it is the applicable substantive law that determines materiality,
whether a particular fact in dispute is material can be seen only in light of
substantive law applicable to the case.” Knox, 2021-0419, p. 10, ___ So.3d ___,
___, 2021 WL 4771758, at *5 (quoting Pilet, 2020-0319, p. 6, 312 So.3d at 1159).
Thus, in order to determine whether the trial court’s grant of summary judgment
was proper in the matter sub judice, we turn our analysis to the applicable
substantive law regarding independent contractors.
16
DISCUSSION
Assignment of Error Number One: Whether the Determination of the Deputy’s
Status as an Independent Contractor is an Appropriate Issue for summary
Judgment.
In his first assignment of error, Mr. Duronslet contends that the
determination of whether the deputy was an independent contractor is not an
appropriate issue for summary judgment.
“Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.” La. C.C. art. 2315(A). Louisiana courts
employ the duty/risk analysis when deciding whether to impose liability under La.
C.C. art. 2315. Cosey on Behalf of Hilliard, 2019-0756, 2019-0785, p. 17 (La.
App. 4 Cir. 11/12/20), ___ So.3d ___, ___, 2020 WL 6687515, at *8 (quoting
Moore v. Choice Found., 2018-0603, p. 5 (La. App. 4 Cir. 5/29/19), 274 So.3d 33,
37). The duty/risk analysis entails determining whether the plaintiff has proved
five elements:
(1) the defendant had a duty to conform his or her conduct to a
specific standard of care (the duty element); (2) the defendant failed to
conform his or her conduct to the appropriate standard (the breach of
duty element); (3) the defendant’s substandard conduct was a cause-
in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s
injuries (the scope of liability or scope of protection element); and, (5)
actual damages (the damages element).
Id. If a plaintiff fails to prove even one of the duty/risk analysis elements, the
defendant is not liable. James v. Ernest N. Morial New Orleans Exhibition Hall
Authority, 2018-0198, p. 6 (La. App. 4 Cir. 12/26/18), 262 So.3d 958, 963 (citing
Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7 (La. 3/10/06), 923 So.2d
627, 633).
17
The threshold determination in a negligence action is the first element, i.e.,
whether the defendant owed a duty to the plaintiff. Id., 2018-0198, p. 7, 262 So.3d
at 964 (quoting Ponceti v. First Lake Props., Inc., 2011-2711, p. 2 (La. 7/2/12), 93
So.3d 1251, 1252). Louisiana Civil Code Article 2320 establishes the duty element
for employers by enumerating the doctrine of respondeat superior, by which
“employers are answerable for the damage occasioned by their employees ‘in the
exercise of the functions in which they are employed.’” Grabowski v. Smith &
Nephew, Inc., 2014-0433, 2013-1409, p. 24 (La. App. 3 Cir. 10/1/14), 149 So.3d
899, 915 (quoting La. C.C. art. 2320). “[H]owever, a principal is not liable for any
actions by an independent contractor.” Hendricks v. United Cab, Inc., 1996-1777,
p. 2 (La. App. 4 Cir. 1/15/97), 687 So.2d 610, 611. Except that a principal is liable
if an independent contractor performed ultra-hazardous work or if the principal
reserved the right to supervise or control the independent contractor’s work. James,
2018-0198, p. 7, 262 So.3d at 964 (citing Thompson v. Winn-Dixie Montgomery,
Inc., 2015-0477, p. 12 (La. 10/14/15), 181 So.3d 656, 665).
Regarding the duty element of the duty/risk analysis, this Court has held that
“[w]hether a duty of care exists in an action for negligence is a question of law that
may be determined on a motion for summary judgment.” Martin v. Ill. Cent. R.R.
Co., 2006-1495, p. 3 (La. App. 4 Cir. 12/19/07), 974 So.2d 741, 743 (citation
omitted). See also Garland v. Beaubouef Co., 53,572, p. 5 (La. App. 2 Cir.
9/23/20), 308 So.3d 771, 775 (citing Allen v. Lockwood, 2014-1724 (La. 2/13/15),
156 So.3d 650; Passon v. Fields, 50,635 (La. App. 2 Cir. 5/18/16), 196 So. 3d
645.). In particular, this Court has also held that “[t]he issue of independent
contractor status is a proper subject to be resolved on summary judgment.” Irwin v.
Rubens, 2011-0405, p. 9 (La. App. 4 Cir. 9/7/11), 75 So.3d 952, 956 (quoting
18
Butler v. Atwood, 420 So.2d 742, 745 (La. App. 4 Cir. 1982)). Moreover, this
Court has upheld a trial court’s grant of a motion for summary judgment on the
issue of independent contractor status. See, e.g., Martin, 2006-1495, p. 4, 7, 974
So.2d at 744-45; Hendricks, 1996-1777, p. 4, 687 So.2d at 612. Accordingly, Mr.
Duronslet’s contention that this issue is not appropriate for resolution via summary
judgment has no merit. If there is no genuine issue of material fact, then
determination of the deputy’s status as either an employee or independent
contractor is proper for summary judgment.
Assignment of Error Number Two: Whether the trial court erred in finding that
the contract between Walmart and U.S. Security was dispositive of the issue of
whether the deputy was an independent contractor.
In his second assignment of error, Mr. Duronslet contends that the trial court
erred in finding that the Security Agreement and Addendum between Walmart and
U.S. Security was dispositive of the issue of whether the deputy was an
independent contractor. Because this Court is applying a de novo standard of
review, it is of no import if the trial court decided the Motion for Partial Summary
Judgment solely based on the Security Agreement and the Addendum.
Moreover, Mr. Duronslet’s contention is not supported by the record. At the
close of the July 22, 2021 hearing, the trial court stated that “the security contract
is clear and unambiguous as it relates to this independent contractor. [N]othing in
the record . . . dispute[s] this. He is not a Walmart employee. . . [T]he issue is
appropriate for summary judgment.” (Emphasis added). Additionally, the July 30,
2021 judgment stated that it was “[b]ased upon the motion, the argument of
counsel, the entire record, and the law . . . . ” Thus, the trial court’s statements at
the hearing and in the judgment indicate that the trial court reviewed the record and
the evidence, not just the Security Agreement and the Addendum, in arriving at the
19
judgment granting the Motion for Partial Summary Judgment and dismissing Mr.
Duronslet’s claims against Walmart.
Considering the foregoing, Appellant’s second assignment of error is
without merit; and we turn to our de novo review of the record to ascertain whether
it supports a finding that the deputy was an independent contractor.
Assignment of Error Number Three: The trial court erred in finding that the
Orleans Parish Sheriff’s deputy was an independent contractor for whom
Walmart had no liability.
Substantive Law: Independent Contractor
In his third assignment of error, Mr. Duronslet asserts that the trial court
erred in finding that the Security Agreement and Addendum were dispositive of
whether the deputy was an independent contractor and in finding that the deputy
was an independent contractor. He contends that the Security Agreement was
insufficient to demonstrate that the deputy was an independent contractor because
the deputy’s work was not of an independent nature and Walmart retained the right
to control the deputy. In particular, Mr. Duronslet contends that the deputy
performed his work inside the Walmart store during operating hours; interacted
with Walmart customers; and acted during the incident at the result of requests for
assistance made by Walmart employees. Further, he asserts that Walmart retained
the right to control the deputy because Walmart had the right to supervise and
oversee the security services provided by U.S. Security. Additionally, under the
theory of apparent authority, Mr. Duronslet argues that “the deputy held himself
out as being able to act for [Walmart].”
As discussed regarding summary judgments, “[b]ecause it is the applicable
substantive law that determines materiality, whether a particular fact in dispute is
material can be seen only in light of substantive law applicable to the case.” Knox,
20
2021-0419, p. 10, ___ So.3d ___, ___, 2021 WL 4771758, at *5 (quoting Pilet,
2020-0319, p. 6, 312 So.3d at 1159). Accordingly, to determine whether the trial
court’s grant of summary judgment in Walmart’s favor was proper, we consider
the substantive law concerning independent contractors.
Employee versus Independent Contractor Factors
There exists “no hard and fast rule” to distinguish between an employee and
an independent contractor; rather the distinction entails a factual determination that
courts decide on a case-by-case basis. Pilet, 2020-0319, p. 9, 312 So.3d at 1161
n.18 (quoting Tate v. Progressive Sec. Ins. Co., 2008-0950, p. 9 (La. App. 4 Cir.
1/28/09), 4 So.3d 915, 920). The label “independent contractor” indicates “a
freedom of action and choice with respect to the undertaking in question and a
legal responsibility on the part of the contractor in case the agreement is not
fulfilled in accordance with its covenants.” Id. (quoting Hickman v. S. Pac. Transp.
Co., 262 So.2d 385, 390 (La. 1972)). As this Court has explained:
The Louisiana Supreme Court has developed the following factors to
help determine whether an individual is an employee or an
independent contractor:
(1) there is a valid contract between the parties; (2) the work being
done is of an independent nature such that the contractor may employ
non-exclusive means in accomplishing it; (3) the contract calls for
specific piecework as a unit to be done according to the independent
contractor’s own methods, without being subject to the control and
direction of the principal, except as to the result of the services to be
rendered; (4) there is a specific price for the overall undertaking
agreed upon; and (5) the duration of the work is for a specific time
and not subject to termination or discontinuance at the will of either
side without a corresponding liability for its breach. Hickman v.
Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972).
Id., 2020-0319, p. 10, 312 So.3d at 1161 (quoting Chaisson v. La. Rock Monsters,
LLC, 2013-1423, pp. 3-4 (La. App. 4 Cir. 4/2/14), 140 So.3d 55, 57-58).
21
At trial, the burden of proof rests with the party seeking to establish an
employer-employee relationship. Hillman v. Comm-Care, Inc., 2001-1140, p. 9
(La. 1/15/02), 805 So.2d 1157, 1163. In the matter sub judice, Mr. Duronslet is the
party seeking to establish an employer-employee relationship between Walmart
and the deputy. Because Walmart does not bear the burden of proof at trial on this
issue, in its Motion for Partial Summary Judgment, Walmart needed only to point
out the absence of factual support for one of the elements demonstrating an
employer-employee relationship for the burden of proof on the Motion for Partial
Summary Judgment to shift to Mr. Duronslet. If so, the burden of proof on the
Motion for Partial Summary Judgment then requires Mr. Duronslet to produce
factual support sufficient to establish the existence of a genuine issue of material
fact or that Walmart was not entitled to judgment as a matter of law. With these
burdens of proof, we review the evidence presented by Walmart and Mr. Duronslet
in light of the factors that guide in distinguishing between an employee and an
independent contractor.
Factor (1) whether there is a valid contract between the parties; Factor (4)
whether there is a specific price for the overall undertaking; and Factor (5)
whether the duration of the work is for a specific time and not subject to
termination or discontinuance at the will of either side without a
corresponding liability for its breach.
Notably, Mr. Duronslet does not dispute the first, fourth, and fifth factors.
Regardless, our de novo review of the record supports a finding that these factors
demonstrate that the deputy was an independent contractor. The Security
Agreement satisfies the first factor (i.e., a valid contract between the parties)
because it constitutes a valid contract between Walmart and U.S. Security. The
Addendum satisfies the fourth factor (i.e., a specific price for the overall
undertaking) because it lists the hourly rate for the security guards. Additionally,
22
the Security Agreement satisfies the fifth factor (i.e., the duration of work is for a
specific time) because it states that it “shall be in force for one (1) year from the
Effective Date . . . and shall continue thereafter on a month-to-month basis until
terminated by either party” either with thirty days’ written notice or by Walmart
immediately in the event of a “material breach” by U.S. Security.
Factor (2) the work being done is of an independent nature; and Factor (3) the
contract calls for specific piecework as a unit.
Instead, Mr. Duronslet’s assignments of error focus on the second and third
factors, namely whether the deputy’s work was of an independent nature, such that
he could employ non-exclusive means in accomplishing it, and whether the
Security Agreement and Addendum called for specific piecework as a unit to be
done according to the deputy’s own methods, without being subject to the control
and direction of Walmart, except as to the result of the services to be rendered. Mr.
Duronslet contends that the deputy’s work was not of an independent nature; that
Walmart retained the right to control the deputy; and that the Security Agreement
and Addendum do not call for a specific piecework as a unit to be done according
to the deputy’s own methods. As the Louisiana Third Circuit Court of Appeal has
observed, “[f]actors two and three are generally discussed together and refer to the
methods used to complete the project, the non-exclusiveness of those methods, and
the degree of control exercised by the principal.” Simon v. Farm Bureau Ins. Co.,
2019-0278, p. 6 (La. App. 3 Cir. 3/4/20), 297 So.3d 147, 151. Further, this Court
has explained that “[t]he ‘essence of the employer-employee relationship is the
right to control.’” Pilet, 2020-0319, p. 10, 312 So.3d at 1161 (quoting Chaisson,
2013-1423, pp. 3-4, 140 So.3d at 57-58). “The primary factors evidencing the right
to control are ‘1) selection and engagement, 2) payment of wages, 3) power of
23
dismissal and 4) power of control.’” Id. “None of the factors alone is
determinative” though, and “the court must consider the totality of the
circumstances.” Id.
For example, in Trichell v. McClure, Payne T. Trichell returned home to the
Indigo Park Apartments in Baton Rouge, Louisiana, and “took a golf cart for a
joyride around the apartment complex[,]” at which time Baton Rouge City Police
Officer Christopher McClure, who served as a “courtesy officer”6 at the apartment
complex, approached Mr. Trichell. 2021-1240, p. 2 (La. App. 1 Cir. 4/8/22), ___
So.3d ___, ___, 2022 WL 1053500, at *1. Afterward, Mr. Trichell attempted to
flee on foot; and during an ensuing altercation, Officer McClure “used a takedown
maneuver to subdue and handcuff” Mr. Trichell. Id. After Mr. Trichell instituted
suit against him, Officer McClure asserted a third-party demand against the
apartment complex, GAA-Nicholson Commercial, LP, d/b/a Indigo Apartments
(hereinafter “GAA”); and Mr. Trichell subsequently amended his petition to name
GAA as a defendant and alleged that GAA was liable for the actions of its
employee, Officer McClure. Id. In response, GAA filed a motion for summary
judgment, arguing that it was not liable for Officer McClure’s actions because he
was acting as an independent contractor at the time of the subject incident. Id. The
trial court granted the motion for summary judgment, and the Louisiana First
Circuit Court of Appeal affirmed that decision, noting that GAA provided Officer
McClure with duties, including being on call for disturbances or safety related
6 According to the opinion, an agreement between Officer McClure and the
apartment complex’s property manager “provided that as an independent
contractor for the property management company, [Officer] McClure agreed to
serve as the on-site courtesy officer for a monthly fee that was to be credited
against [Officer] McClure’s monthly rental obligation.” Trichell, 2021-1240, pp. 5-
6, ___ So.3d ___, ___, 2022 WL 1053500, at *3.
24
calls; walking and patrolling the property on a random basis; and assisting
management with resident problems when requested. Id., 2021-1240, p. 3, ___
So.3d ___, ___, 2022 WL 1053500, at *3. However, the Louisiana First Circuit
Court of Appeal further explained that the methods and timing of completing those
duties were within Officer McClure’s control and performed without the
accompaniment of GAA management or personnel. Id., pp. 6-7, ___ So.3d ___,
___, 2022 WL 1053500, at *3. Additionally, the Louisiana First Circuit Court of
Appeal observed that GAA did not provide tools or training to Officer McClure to
perform these duties and that Officer McClure “handled the [subject] incident at
his own discretion, according to his police training.” Id. In upholding the trial
court’s grant of summary judgment, the Louisiana First Circuit Court of Appeal
concluded that “[Mr.] Trichell failed to show that he would be able to bear his
burden at trial of proving that [Officer] McClure, the alleged tortfeasor, was an
employee of GAA.” Id., p. 9, ___ So.3d ___, ___, 2022 WL 1053500, at *4. See
also Butler v. Boutan, 2014-1058, pp. 6-7 (La. App. 1 Cir. 12/23/14), 168 So.3d
501, 506-07 (wherein the Louisiana First Circuit Court of Appeal held that a
deputy was an independent contractor, rather than an employee of a motel, noting
that motel management did not direct the deputy to arrest anyone involved in the
particular incident and that the deputy had complete authority to handle situations
that might require removal of guests from the premises.)
In the matter sub judice, the Addendum called for U.S. Security to provide
security services at Walmart by supplying a “permanent law enforcement officer”
with “duties . . . to staff a post at the front entrance or periodically walk around the
sales floor as directed by the store management team, providing a visible deterrent
to criminal activity.” Though the Addendum called for the duties to be performed
25
“as directed by the store management team,” Officer McClure in Trichell likewise
had a duty to “assist[] management with [] problems when requested;” yet this did
not rise to the level of control contemplated by the jurisprudence on independent
contractors. Further, like in Trichell, per the Security Agreement, Walmart did not
provide the security guards with operating supplies and equipment. Rather, that
was the responsibility of U.S. Security. Additionally, while the “Quality of
Services” section of the Security Agreement provided that “[s]ervices must meet
the approval of [Walmart] and shall be subject to [Walmart]’s general right of
inspection and supervision[,]” that same section stated that “[d]ay-to-day and
operational management of the [s]ervices shall be within the sole control of [U.S.
Security].” The Security Agreement further connoted a degree of autonomy for the
guards because it stated that the security guards “may take any precaution the
security guard(s), in their professional judgment, determine is necessary to protect
themselves, customers, and [Walmart] associates.” (Emphasis added). Looking at
the other sub-factors evidencing a right of control, in terms of 1) selection and
engagement, 2) payment of wages, and 3) power of dismissal, the Security
Agreement provides, respectively, that Walmart and U.S. Security are each “solely
responsible” for hiring, paying, and firing their employees.
Though, as Mr. Duronslet contends, a “self-serving designation of
‘independent contractor’” in a contract would not be sufficient if the principal
actually retained control over an independent contractor, Mr. Duronslet’s own
deposition testimony fails to demonstrate that Walmart or its employees exercised
control over the deputy during the subject incident. See Suhor v. Medina, 421
So.2d 271, 274 (La. App. 4 Cir. 1982). Mr. Duronslet testified that he “[did not]
know” what brought the deputy to the scene and could not affirmatively say that a
26
Walmart employee asked the deputy to the scene of the incident or even that a
Walmart employee was present during the altercation. He stated that he did not
hear any Walmart employee request or suggest that the deputy physically contact
him or put him in handcuffs. He further testified that the deputy alone physically
escorted him to the security office and told him to sign the Notification.
Further, we acknowledge the statements in Mr. Duronslet’s July 7, 2021
affidavit that the deputy’s actions allegedly occurred in view of Walmart
employees, who failed to intervene and thereby “tacitly consented to the [deputy]’s
actions.” However, this Court has held that “[a] subsequent affidavit in
contradiction to prior deposition testimony is not sufficient to create an issue of
fact precluding summary judgment without some explanation or support for the
contrary statement.” Lebeau v. Saxon Mortg. Servs., Inc., 2018-0199, p. 9 (La.
App. 4 Cir. 4/17/19), 269 So.3d 970, 976 (quoting McCastle-Getwood v. Prof’l
Cleaning Control, 2014-0993, p. 7 (La. App. 1 Cir. 1/29/15), 170 So.3d 218, 222).
As this Court has explained, “[t]his is to prevent the too easy thwarting of
summary judgment procedure by the mere filing of an affidavit contradicting
inconvenient statements found in previous deposition testimony when the mover
[on the motion for summary judgment] has no opportunity to cross-examine the
witness concerning the inconsistencies and the trial court is prevented from
weighing evidence by the rules of summary judgment.” George v. Dover Elevator
Co., 2002-0821, p. 4 (La. App. 4 Cir. 9/25/02), 828 So.2d 1194, 1197. The
statements in Mr. Duronslet’s subsequent July 7, 2021 affidavit contradict his prior
July 20, 2020 deposition testimony. At his deposition, Mr. Duronslet testified that
he “[did not] think” the deputy was standing with any Walmart employees when
the deputy arrived at the scene; that he “[could not] answer” when asked whether
27
“any Walmart personnel [were] around” during the altercation; and that no
Walmart employee was involved in his signing of the Notification. Because Mr.
Duronslet does not offer any explanation in either his affidavit or elsewhere for his
inconsistent testimony, we find that Mr. Duronslet’s July 7, 2021 affidavit is not
sufficient evidence to establish that he would be able to satisfy his burden of proof
at trial on this issue. Thus, we conclude that Mr. Duronslet has failed to support his
assertion that the deputy was an employee of Walmart.
Apparent Authority
Mr. Duronslet alternatively contends that Walmart is liable for the deputy’s
actions under the doctrine of apparent authority. In addition to a principal retaining
liability for an independent contractor if the principal exercises control, another
instance in which a principal remains liable for the actions of an independent
contractor is if the principal has provided the independent contractor with apparent
authority. Apparent authority is defined as “the power to affect the legal relations
of another person by transactions with third persons, professedly as agent for the
other, arising from and in accordance with the other’s manifestations to such third
persons.” Indep. Fire Ins. Co. v. Able Moving & Storage Co., Inc., 1994-1982, p. 4,
650 So.2d 750, 752 (quoting RESTATEMENT (SECOND) OF AGENCY § 8 (1958)). The
Louisiana Third Circuit Court of Appeal has explained:
Apparent authority is a doctrine by which an agent is empowered to
bind his principal in a transaction with a third person when the
principal has made a manifestation to the third person, or to the
community of which the third person is a member, that the agent is
authorized to engage in the particular transaction, although the
principal has not actually delegated this authority to the agent. In an
actual authority situation the principal makes the manifestation first to
the agent; in an apparent authority situation the principal makes this
manifestation to a third person. However, the third person has the
same rights in relation to the principal under either actual or apparent
authority. Further, apparent authority operates only when it is
28
reasonable for the third person to believe the agent is authorized and
the third person actually believes this.
....
Louisiana courts have utilized the doctrine of apparent authority to
protect third persons by treating a principal who has manifested an
agent’s authority to third persons as if the principal had actually
granted the authority to the agent.
Grabowski, 2014-0433, 2013-1409, pp. 21-22, 149 So.3d at 913-14 (quoting
Tedesco v. Gentry Dev., Inc., 540 So.2d 960, 963 (La. 1989)). The burden of proof
rests with the party seeking to bind the principal. Id., 2013-0422, p. 22, 149 So.3d
at 914 (citing Eakin v. Eakin, 2007-0693, p. 6 (La. App. 3 Cir. 12/19/07), 973
So.2d 873, 877).
As discussed, Mr. Duronslet testified during his July 20, 2020 deposition
that he did not hear any Walmart employee direct the deputy to make physical
contact with him and to handcuff him. Additionally, when asked whether “any
Walmart personnel [were] around” during the “altercation,” Mr. Duronslet
responded, “I [cannot] answer that.” Thereafter, he testified that the deputy
“wanted” him to sign the Notification and that no Walmart employee was involved
in having him sign the Notification. When asked to clarify whether a Walmart
employee was in the security office when he signed the Notification, Mr. Duronslet
explained that “[t]here may have been somebody there, but there was not
conversation, no interaction” and recalled that “they might have been there to put a
coat on or something and then left.” Mr. Duronslet’s deposition testimony does not
support his assertion that he reasonably believed that the deputy had the apparent
authority to act on behalf of Walmart.
Again we acknowledge that in Mr. Duronslet’s subsequent July 7, 2021
affidavit he stated that “[t]he actions of the deputy took place in full view of
29
[Walmart] employees who failed to intervene and who tacitly consented to the
[deputy]’s actions;” “[t]here were [Walmart] employees in the [security] office”
when he signed the Notification; that “[t]he [Walmart] employees all saw and
heard everything that took place” in the security office; and that “[t]he tacit
acceptance . . . by the [Walmart] employees indicated . . . that the deputy had the
apparent authority to act on behalf of [Walmart] to restrict [Mr. Duronslet]’s access
to any [Walmart] property.” However, as noted previously, a subsequent affidavit
that contradicts prior deposition testimony is insufficient to create an issue of fact
so as to preclude summary judgment without some explanation or support for the
contrary statements. Lebeau, 2018-0199, p. 9, 269 So.3d at 976 (quoting McCastle-
Getwood, 2014-0993, p. 7, 170 So.3d at 222). Mr. Duronslet’s statements in his
July 7, 2021 affidavit contradict his prior deposition testimony from July 20, 2020;
and he has not provided any explanation or support for the subsequent
contradictory statements. Considering the foregoing, Mr. Duronslet’s third
assignment of error is without merit because he has failed to carry his burden of
proving that he reasonably believed that the deputy had the apparent authority to
act on behalf of Walmart.
Based upon our de novo review of the record, Walmart proved the absence
of factual support for Mr. Duronslet’s contention that the deputy was an employee
of Walmart rather than an independent contractor, thereby shifting the burden of
proof on the Motion for Partial Summary Judgment to Mr. Duronslet. In response,
Mr. Duronslet failed to provide evidence sufficient to establish that he will be able
to satisfy his burden at trial of demonstrating that the deputy was an employee of
Walmart or that Walmart was liable for his actions because the deputy had
30
apparent authority to act on behalf of Walmart. Therefore, the trial court did not err
in granting Walmart’s Motion for Partial Summary Judgment.
DECREE
For the foregoing reasons, the trial court’s July 30, 2021 judgment, which
granted Walmart’s Motion for Partial Summary Judgment and dismissed Mr.
Duronslet’s claims against Walmart with prejudice, is affirmed.
AFFIRMED
31