Legal Blog

Louisiana Defenses: Defending Employer Liability for Worker’s Negligent Torts

Written by Kristin Lausten

Under Louisiana law, an employer can be held liable for the acts and omissions of workers and employees if the worker/employee is engaged in work-related activities. However, generally, there are three main legal theories for defeating employer liability:

  • Employee was not “at work”
  • Employee was not engaged in “work” — that is, engaged in personal activity unrelated to his or her employer’s interests
  • Employee acted in a manner not authorized — for example, criminal behavior

This article will provide a brief discussion of the first defense.

Defending Employer Tort Liability: Legal Principles

Employer liability for the negligence of an employee is governed by the Louisiana Civil Code. Article 2320, for example, 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.” Louisiana courts have interpreted this to mean that the following four conditions must be met for liability be imposed on the employer:

  • Employment or master/servant relationship
  • Tortious conduct must have occurred during COURSE of worker’s employment
  • Tortious conduct must have been within SCOPE of employment — related to master/employer’s business
  • Causal connection between the conduct and the injury

See Orgeron v. McDonald, 93-1353, (La. 7/5/94), 639 So. 2d 224 (Louisiana Supreme Court 7/4/94) As the Orgeron court defined it, within the “course” and “scope” of employment means conduct is of the kind that the worker is employed to perform, occurs substantially within the expected and authorized work times and work location(s) and when the acts or behavior are motivated, at least in part, by the worker serving the goals and purposes of the employer. The theory behind employer liability is that an employer should be liable if business activity constitutes a risk of harm to others.

From these legal principles, it can be seen that, typically, employers are not held liable for negligence caused by employee when the employees are going to and from work or when they are going to and from lunch. The general idea is that a worker is not typically seen as being “at work” until he or she arrives and going to lunch — particularly if lunch is off the work-site — is not typically seen as being “at work.” The rule changes if the worker performs some task or errand for the employer while going to or from work and/or if the commute is considered part of the employee’s work — for example, a business trip.

A good example is provided by the recent Louisiana Court of Appeals case of Richey v. Miller, Case No. 2017 CA 0462 (La. App. 1st Dist. March 29, 2018). In that case, the employee was involved in a car collision. The other driver attempted to hold the driver’s employee liable. The plaintiff argued that employer liability should be imposed because the employee worked from home, did not have set “office hours,” worked as a sales department technical support personnel, was generally reimbursed for his travel and his employer considered the travel to be part of the employee’s job. However, summary judgment was granted and affirmed by the Court of Appeals because, in this particular occasion, the employee was not doing any activity related to his job.

He was returning from his son’s high school where he had been practicing football with his son. In addition to this non-employment-related purpose for his travel, the court noted that the employee was not “on call” with his employer. Furthermore, the employee testified that he did not talk to anyone while in his vehicle, nor did he text. This was confirmed by phone records. Finally, the employee sent an email before leaving to go to his son’s football practice and several work-related emails were received that afternoon. However, the employee did not respond to them in the hours surrounding the football practice and the accident. These facts demonstrated that dismissing the case against the employer was proper.

Defending Employer Tort Liability: Contact New Orleans Attorney Kristin M. Lausten

If you want further information about employer tort liability or other insurance defense doctrines, contact an experienced Louisiana insurance defense lawyer.

The author may be contacted at:

Kristin M. Lausten

New Orleans, Louisiana
Telephone: 504.377.6585

This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.