The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-623
LAKEISHA WATERSTRAAT, ET AL.
VERSUS
VERNON PARISH SCHOOL BOARD
**********
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 85,313, DIV. B
HONORABLE JOHN C. FORD, DISTRICT JUDGE
**********
JIMMIE C. PETERS
JUDGE
**********
Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.
AFFIRMED.
GENOVESE, J., dissents and assigns reasons.
Ronald J. Fiorenza
Provosty, Sadler, deLauney, Fiorenza & Sobel
P. O. Box 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR DEFENDANT/APPELLANT:
Vernon Parish School Board
James A. Blanco
Mitchell & Blanco, LLC
Capital One Tower, Suite 1459
Lake Charles, LA 70629
One Lakeshore Drive
(337) 436-8686
COUNSEL FOR DEFENDANT/APPELLANT:
Vernon Parish School Board
Christopher J. Roy, Jr.
Chris J. Roy, Jr., A.P.L.C.
P. O. Box 1592
Alexandria, LA 71309-1592
(318) 487-9537
COUNSEL FOR PLAINTIFFS/APPELLEES:
Lakeisha Waterstraat
Aaron Waterstraat, Sr.
Aaron Waterstraat, Jr.
S. Christie Smith, IV
Smith Bush, LLP
P. O. Drawer 1528
Leesville, LA 71496-1528
(337) 239-2244
COUNSEL FOR PLAINTIFFS/APPELLEES:
Lakeisha Waterstraat
Aaron Waterstraat, Sr.
Aaron Waterstraat, Jr.
PETERS, J.
This appeal arises from an October 1, 2010 vehicle-pedestrian accident
which occurred in Leesville, Vernon Parish, Louisiana. The Vernon Parish School
Board (School Board) appeals a trial court judgment rendered against it and in
favor of Lakeisha Waterstraat awarding her general and special damages sustained
by her in the accident. For the following reasons, we affirm the trial court
judgment in all respects.
DISCUSSION OF THE RECORD
The accident at issue occurred on the afternoon of October 1, 2010.
Lakeisha Waterstraat was struck by a vehicle operated by Matthew Morrison as
she attempted to cross Belview Road at its intersection with Herring Road in
Leesville, Louisiana. The intersection is directly adjacent to Leesville High School,
where Mr. Morrison was employed as a science teacher and an assistant football
coach. At the time of the accident, Mr. Morrison was returning from his parents’
home after retrieving an undershirt to wear under his coaching shirt at a high
school football game to be played later that evening.
Mrs. Waterstraat initially filed suit on September 18, 2011, naming only Mr.
Morrison and his liability insurer as defendants. However, she later added the
School Board as a co-defendant, under both the theory of respondeat superior1 and
the School Board’s own negligence for failure to provide supervision in the
crosswalk where the accident occurred. The School Board responded to the suit by
filing, among other pleadings, a motion for summary judgment wherein it asserted
that at the time of the accident, Mr. Morrison was not in the course and scope of
1
The original petition included a claim for damages sustained by Mrs. Waterstraat’s
minor child, A. Waterstraat, Jr., and in later pleadings added her husband, Aaron Waterstraat, Sr.,
and her mother, Rosa Cole, as party plaintiffs as well. However, the claims of the other three
plaintiffs were resolved before trial of this matter. Additionally, the claims against Mr. Morrison
and his liability insurer were dismissed before trial, leaving the School Board as the sole
defendant.
his employment with the School Board. The trial court heard the motion for
summary judgment on June 18, 2012, and rejected it in written reasons rendered on
November 26, 2012.
The matter was tried as a bench trial on September 12, 2013, and the trial
court rendered written reasons for judgment on December 17, 2013, wherein it
rejected the independent negligence claim against the School Board, but found that
Mr. Morrison was in the course and scope of his employment with the School
Board at the time of the accident, and that the School Board was liable to Mrs.
Waterstraat for the damages she sustained in the accident pursuant to the doctrine
of respondeat superior. 2 The trial court executed a judgment to this effect on
January 27, 2014, awarding Mrs. Waterstraat $72,208.88 in special damages and
$80,000.00 in general damages.3
Thereafter, the School Board perfected this appeal wherein it asserted that (1)
the trial court erred in rejecting its motion for summary judgment, and (2) that the
trial court erred in finding that Mr. Morrison was in the course and scope of his
employment with the School Board at the time of the accident.
OPINION
Both of the School Board’s assignments of error address Mr. Morrison’s
employment status at the time of the accident, but the analysis of those
assignments requires the application of different standards of review. It is well-
settled that we review the grant or denial of a motion for summary judgment de
novo. See Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750.
2
While neither the reasons for judgment nor the ultimate judgment on the merits
addresses the negligence of Mr. Morrison, the defendants do not argue on appeal that the trial
court found anything other than that the accident was caused solely and exclusively by the
negligence of Mr. Morrison.
3
As per a stipulation entered into at the beginning of trial, the judgment gave the School
Board a credit for the $25,000.00 Mrs. Waterstraat had previously recovered from Mr. Morrison
and his liability insurer.
2
On the other hand, the trial court’s determination at trial that a particular act is
within the course and scope of employment for purposes of vicarious liability is a
factual finding governed by the manifest error rule. Ermert v. Hartford Ins. Co.,
559 So.2d 467 (La.1990). ―The application of this standard of review mandates
that [the appellate] court can only reverse a lower court’s factual findings when (1)
the record reflects that a reasonable factual basis does not exist for the finding of
the trial court and (2) the record establishes that the finding is clearly wrong.‖
Emoakemeh v. S. Univ., 94-1194, (La.App. 1 Cir. 4/7/95), 654 So.2d 474, 477-78
(citations omitted).
Louisiana Code of Civil Procedure Article 966, which governs summary
judgment proceedings, was significantly amended in both the 2012 and 2013
legislative sessions,4 but those amendments did not change the burden of proof
required of a movant in a summary judgment proceeding.
The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’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 that there is an absence of factual support for
one or more elements essential to the adverse party’s claim action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material of fact.
La.Code Civ.P. art. 966(C)(2).
Because the School Board did not bear the burden of proof at trial, it bore
the initial burden of proof under La.Code Civ.P. art. 966(C)(2), and in support of
its motion, it relied primarily on the deposition of Mr. Morrison, the content of
which is summarized as follows:
4
2012 La. Acts No. 257, § 1, effective Aug. 1, 2012; 2013 La. Acts. No. 391, § 1,
effective Aug. 1, 2013.
3
The accident occurred at the intersection of Belview and
Herring Roads (directly adjacent to Leesville High School), at
approximately 2:37 p.m. on the evening of Friday, October 1, 2010.
On that date, Mr. Morrison was employed by the Vernon Parish
School Board, as a science teacher and assistant coach at Leesville
High School. As an assistant offensive line coach, Mr. Morrison was
scheduled to attend a football game between Leesville High School
and DeRidder High School, to be played in DeRidder, Louisiana, on
the night of the accident. Football coaches at Leesville High School
are required to wear a Polo style shirt while coaching games on behalf
of Leesville High School.
Mr. Morrison’s work day typically began at about 7:30 a.m. and
ended at approximately 3:15 p.m. As part of his usual teaching
schedule, Mr. Morrison taught four different science classes between
8:00 a.m. and approximately 1:15 p.m., with a lunch break between
10:00 a.m. and 10:30 a.m. Mr. Morrison’s sixth hour, known as his
planning hour, was held between 1:15 p.m. and 2:15 p.m., and as a
general practice, teachers and coaches are permitted to use either their
lunch hour or planning hour for personal business away from the
Leesville High School campus. On October 1, 2010, Mr. Morrison left
Leesville High School about 20 to 25 minutes before the accident, and
drove to his parents’ home about two and a half miles away. There, he
ate a snack, drank an energy drink, and secured an undershirt. The
primary purpose of Mr. Morrison’s trip was to retrieve an undershirt
to wear under the assigned Polo shirt, which would make him more
comfortable for the night football game. Mr. Morrison did not ask
permission from anyone at Leesville High School to leave the
premises to secure an undershirt; nor did Mr. Morrison sign out before
leaving the school campus. The undershirt is not a part of Mr.
Morrison’s required teaching/coaching uniform.
After considering the deposition of Mr. Morrison, as well as the record
before it, the trial court made the following conclusions in its reasons for judgment:
The Court concludes there are genuine issues of material fact
for the trier of fact to address. The defendant’s conduct was connected
to his employment and was reasonably incidental to the performance
of his duties because it could be reasonable to conclude and
foreseeable that a coach would dress adequately considering that
during football season nights can become rather cool. The School
Board supplied a coach’s shirt to be worn during the game to identify
him as such but did not supply the undergarments or other attire which
may be suitable for weather.
The accident occurred during his hours of employment and
although not occurring on School Board property, it occurred in a
place where the trier of fact could conclude that the School Board had
knowledge of high volume pedestrian traffic.
4
Considering the record before us, we find no error in the trial court’s
determination that genuine issues of material fact existed in the litigation. That
being the case, we find no error in the trial court’s rejection of the School Board’s
motion for summary judgment.
Turning next to the trial court’s ultimate judgment in finding the School
Board liable for the negligence of Mr. Morrison, we note that the court in
Emoakemeh, addressed the very issue now before us and analyzed it as follows:
Vicarious liability is based on La.Civ.Code art. 2320, which
states that ―[m]asters and employers are answerable for the damage
occasioned by their servants and overseers, in the exercise of the
functions in which they are employed.‖ Under this article, liability
extends only to the employee’s tortious conduct that is within the
course and scope of the employment. Orgeron v. McDonald, 93-1353,
p. 4 (La. 7/5/94); 639 So.2d 224, 226. Whether an employee is acting
within the course and scope of his employment is a question that can
only be answered by general rules because of the unending contexts in
which the question may arise. Id.
As a general rule, the jurisprudence has identified four factors
to consider in making a vicarious liability determination, including
whether the tortious act: (1) was primarily employment rooted; (2)
was reasonably incidental to performance of employment duties; (3)
occurred during work hours; and (4) occurred on the employer’s
premises. LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974); Samuels
v. Southern Baptist Hospital, 594 So.2d 571, 573 (La.App. 4th Cir.),
writ denied, 599 So.2d 316 (La.1992). It is not necessary that each of
the factors be present in each case, and each case must be decided on
its own merits. Id. Under the LeBrane test, an 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 v. McDonald, 93-1353, p. 4; 639
So.2d at 227. The scope of the risks attributable to an employer
increases with the amount of authority and freedom of action granted
to the employee in performing the assigned tasks. Ermert v. Hartford
Insurance Company, 559 So.2d 467, 477 (La.1990). However, an
employer is not responsible for an employee’s conduct that is
motivated by purely personal considerations entirely extraneous to the
employer’s interests. LeBrane v. Lewis, 292 So.2d at 218.
Emoakemeh, 654 So.2d 474, 476-77.
5
Additionally, the supreme court stated in Ermert, 559 So.2d at 477 (citations
omitted), that:
The fact that the predominant motive of the servant is to benefit
himself or a third person does not prevent the act from being within
the scope of employment. If the purpose of serving the master’s
business actuates the servant to any appreciable extent, the master is
subject to liability if the act is otherwise within the service.
At trial, Mr. Morrison testified to essentially the same facts as were set forth
in his deposition. Additionally, he testified that he always wore an undershirt for
comfort under his Polo coaching shirt; that on the date of the accident he had
forgotten to wear his undershirt; and that he went back home during school hours
in order to obtain an undershirt. Additionally, the School Board introduced an
excerpt from the Leesville High School Teacher Handbook (Teacher Handbook)
which addressed teachers transacting personal business on school time. That
excerpt provides, in pertinent part, that ―Faculty and staff are requested to conduct
personal business during a time other than the teaching day (7:30 a.m. – 3:20
p.m.)[,]‖ and, ―no faculty or staff member should leave campus unless they have
signed out with the permission of the principal.‖ In this case, Mr. Morrison left the
high school campus without signing out and without obtaining the permission of
the principal.
The trial court found that Mr. Morrison was acting in the course and scope
of his employment with the Vernon Parish School Board at the time of the accident,
and in doing so, stated the following:
Morrison was a teacher and assistant football coach whose
duties extended beyond those of a pure classroom teacher.
Historically, coaches are different from classroom teachers.
They are required, among other things, to supervise locker rooms, use
of equipment, sports facilities, student athletes and to coach young
men and women in an attempt to mold them into a team to compete in
6
the athletic arena. This requires great dedication and working many
hours after the classrooms are vacant.
Here Coach Morrison was on an errand to retrieve a T-shirt to
wear under his coach’s uniform at a game later that night. Although
the T-shirt was not part of the required school uniform and was not
supplied by the school, it was used to facilitate the required uniform at
a night game.
Considering the circumstances of this case, the Court finds that
it is more probable than not Morrison was acting within the scope of
his employment with the Vernon Parish School Board at the time of
the accident. Accordingly, the Court awards plaintiffs the following:
$26,208.88 in past medical; $16,000.00 for future medical;
$30,000.00 for loss of income; and $80,000.00 general damages for
pain and suffering, together with legal interest and costs of court.
We find no error in the trial court’s ruling that Mr. Morrison’s act of driving
home, during school hours, to secure an undershirt, was a reasonably foreseeable
act actuated by a desire to serve his employer. In reaching this conclusion, we also
note that the school policy as set forth in the Teacher Handbook does not provide
mandatory language, but rather requests the faculty or staff member not to leave
during school hours, and to sign out and obtain permission of the principal before
doing so. We find no merit in the School Board’s argument on this issue.
DISPOSITION
For the foregoing reasons, we affirm the trial court’s denial of the Vernon
Parish School Board’s motion for summary judgment, and the trial court’s
judgment finding the Vernon Parish School Board vicariously liable for the
negligence of Mr. Morrison. We assess all costs of this appeal to the Vernon Parish
School Board.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION
Uniform Rules—Courts of Appeal, Rule 2-16.3
7
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-623
LAKEISHA WATERSTRAAT, ET AL.
VERSUS
VERNON PARISH SCHOOL BOARD
Genovese, J., dissents and assigns the following written reasons:
The majority affirms the trial court’s ruling that the teacher/coach
(Mr. Morrison) was acting in the course and scope of his employment with the
Vernon Parish School Board at the time he struck the pedestrian. I disagree.
On the day of the incident in question, Mr. Morrison left school to go to his
parents’ home. In his deposition, he stated that the primary purpose of his trip to
his parents’ home was to retrieve an undershirt. While at his parents’ home, he ate
a snack, drank an energy drink, and secured an undershirt.
According to the record, football coaches at Leesville High School are
required to wear a Polo-style shirt containing a Leesville High School insignia/logo
when attending home and away football games. There was a football game the
night of the incident. The undershirt is not part of the teaching/coaching uniform.
These facts are not in dispute.
In my view, it is clear that Mr. Morrison was on a personal errand and not in
the course and scope of his employment with the Vernon Parish School Board.
The undershirt he retrieved, by his own admission in his deposition, was solely for
his “comfort” and was not a part of the mandatory teaching/coaching uniform at
Leesville High School.
I would reverse the trial court and grant the Vernon Parish School Board’s
motion for summary judgment.