Reginald Martin v. Rodney Thomas, Greer Logging, Llc and National Liability And Fire Insurance Company

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #031
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 29th day of June, 2022 are as follows:
BY Hughes, J.:
2021-C-01490 REGINALD MARTIN VS. RODNEY THOMAS, GREER LOGGING, LLC
and NATIONAL LIABILITY AND FIRE INSURANCE COMPANY (Parish
of Caddo)
REVERSED AND REMANDED. SEE OPINION.
Crichton, J., additionally concurs and assigns reasons.
Genovese, J., additionally concurs for the rea sons assigne d b y Justice
Crichton and Justice Crain.
Crain, J., concurs and assigns reasons.
Griffin, J., additionally concurs for the reasons assigned by Justice Crichton
and Justice Crain.

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S
UPREME COURT OF LOUISIANA
No. 2021-C-01490
RE
GINALD MARTIN
VS.
RODNEY THOMAS, GREER LOGGING, LLC and NATIONAL
LIABILITY AND FIRE INSURANCE COMPANY
O
n Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Caddo
H
ughes, J.
At issue i n this motion for partial summary judgment is whether a plaintiff
may pursue both a negligence cause of action against an employee for which the
employer is vicariously liable and a direct claim against the employer for its own
negligence in hiring, supervision, training, and retention as well as a negligent
entrustment claim, when the employer stipulates that the employee was in the course
and scope of employment at the time of the injury. We hold that a plaintiff can
maintain both claims even if the employer has stipulated to the course and scope of
employment. We therefore reverse the partial summary judgment in favor of the
employer which dismissed the claims asserted directly against it, and remand to the
district court.
FACTS AND PROCEDURAL HISTORY
Plaintiff Reginald Martin named truck driver Rodney Thomas, his employer
Greer Logging, LLC, and its insurer National Liability and Fire Insurance Company
as defendants in this personal injury case. The plaintiff alleges that he and defendant
Thomas were involved in a collision on South Purdue Street in Vivian, Louisiana at

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8:27 p.m. on December 17, 2016. The plaintiff was driving a 2004 Honda Accord.
Defendant Thomas was operating a 2016 Peterbilt tractor truck owned by Greer
Logging. The plaintiff alleges Thomas was backing into a driveway.
The plaintiff alleges that following the accident he suffered from several
injuries including head/facial contusions, multiple broken ribs, a fractured sternum,
an open fracture of the tibial plateau, an open comminuted fracture of his left patella,
and open wounds of the left leg, knee, and ankle. He also alleges mental anguish and
distress in his petition.
The plaintiff’s initial petition, filed April 4, 2017, alleged only negligence on
the part of driver Thomas. In their answer, the defendants admitted that Thomas was
at all pertinent times in the course and scope of his employment with Greer Logging,
LLC.
The plaintiff filed a supplemental and amending petition on July 16, 2020.
The amended petition added causes of action against Greer Logging for negligent
hiring, supervision, training, and retention as well as a negligent entrustment claim
(hereinafter “direct negligence claims”) . Specifically, the plaintiff alleged
negligence on the part of employer Greer L ogging for its failure to do a thorough
background check on Thomas; to check employment and personal references; to
check employment history and attempt to speak with former supervisors; to check
driving records and history prior to hiring him; to establish and enforce proper
employee screening; in hiring him despite his incompetent driving record; to train
him about proper driving; to train him regarding backing the tractor trailer; to train
him regarding the proper use of spotters; to train him how to be attentive and do
what he should have done or see what he should have seen in order to avoid the
accident; to supervise him; for negligent entrustment of the vehicle despite the
knowledge that he was an incompetent driver; and for negligent entrustment of the
vehicle to him despite actual or constructive knowledge that he would drive the

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tractor trailer in a negligent, reckless, or careless manner, while knowing that he was
likely to use the vehicle in a manner involving an unreasonable risk of physical harm
to other drivers.
The defendants filed a motion for partial summary judgment seeking
dismissal of the claims asserted in the amended petition. They argued that because
course and scope of employment had been admitted, under Louisiana jurisprudence,
a plaintiff cannot maintain direct negligence claims against an employer while also
maintaining a claim against an employee for which a plaintiff seeks to hold the
employer vicariously liable.
The trial court granted the defendants’ partial motion for summary judgment,
dismissing with prejudice the claims raised in the amended petition. Plaintiff filed a
devolutive appeal, and the court of appeal affirmed. Martin v. Thomas, 54,009 (La.
App. 2 Cir. 8/11/21), 326 So.3d 334.
LAW AND ANALYSIS
This court applies a de novo standard of review in considering lower court
rulings on summary judgment motions. Bufkin v. Felipe’s La., LLC, 14-288, p. 3
(La. 10/15/14), 171 So.3d 851, 854; Catahoula Par. Sch. Bd. v. La. Mach. Rentals,
LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065, 1071. Thus, we use the same
criteria that govern the district court’s consideration of whether summary judgment
is appropriate. Id. Pursuant to Louisiana Code of Civil Procedure article 966(A)(3)-
(4), a court must grant a motion for summary judgment if the pleadings,
memoranda,
1 affidavits, depositions, answers to interrogatories, certified medical
records, written stipulations, and admissions show that there is no genuine issue of

1 See La. Code Civ. Proc. art. 966(A)(3) (“[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. Proc.
art. 966, 2015 Revision Comment (c) (“Although a memorandum is not a pleading or evidence, it
is a proper document that can be used by a party to advance his arguments in support of or in
opposition to the motion. See, e.g., Meaux v. Galtier, 972 So.2d 1137 (La. 2008).”).

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material fact and that the mover is entitled to judgment as a matter of law. Bufkin,
14-0288 at p. 3, 171 So.3d at 854; Catahoula , 12-2504 at p. 8, 124 So.3d at 1071.
The summary judgment procedure is designed to secure the just, speedy, and
inexpensive determination of every action, except those disallowed by art. 969; the
procedure is favored and shall be construed to accomplish these ends. La. Code Civ.
Proc. art. 966(A)(2). A summary judgment may be rendered dispositive of a
particular issue, theory of recovery, cause of action, or defense, in favor of one or
more parties, even though the granting of the summary judgment does not dispose
of the entire case as to that party or parties. La. Code Civ. Proc. art. 966(E).
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 e ssential 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. La. Code Civ.
Proc. art. 966(D)(1). 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. Id. “When a motion for
summary judgment is made and supported as provided [in La. Code Civ. Proc. art.
967(A)
2], an adverse party may not rest on the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided [in La. Code Civ.
Proc. art. 967(A)], must set forth specific facts showing that there is a genuine issue

2 See La. Code Civ. Proc. art. 967(A) (“Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. The supporting
and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be
admissible in evidence under Louisiana Code of Evidence Article 702, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”).

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for trial. If he does not so respond, summary judgment, if appropriate, s hall be
rendered against him.” La. Code Civ. Proc. art. 967(B).
Applicant-plaintiff argues to this court that dismissi ng his direct negligence
claims against Greer Logging is in contravention of various Louisiana Civil Code
articles including those that require the fault of all persons contributing to the
plaintiff’s injury be quantified by the jury and those that require employers to be
liable for damage caused by employees as well as general tort principles.
The defendants argue that when an employer admits that its employee was
acting in course and scope at the time of the accident, direct negligence claims
against the employer are “subsumed” by the driver’s negligence and fault for which
the employer will be vicariously liable.
This case presents an issue of first impression for this court. As always, we
begin our analysis by looking at all relevant legislation as legislation is superior to
any other source of law. Willis -Knighton Med. Ctr. v. Caddo Shreveport Sales
& Use Tax Comm’n, 04-473, p. 34 (La. 4/1/05), 903 So.2d 1071, 1092 (citing La.
Civ. Code art. 2) . “[T]he paramount consider ation in statutory construction is
ascertainment of the legislative intent and the reason or reasons which prompted the
Legislature to enact the law.” M.J. Farms, Ltd. v. Exxon Mobil Corp. , 07-2371,
p. 13 (La. 7/1/08), 998 So.2d 16, 27 ( citing State v. Johnson, 03-2993, p. 12 (La.
10/19/04), 884 So.2d 568, 575). It is well established that “[t]he starting point for
the interpretation of any statute is the language of the statute itself.” Dejoie v.
Medley, 08-2223, p. 6 (La. 5/5/09), 9 So.3d 826, 829. When a statute is clear and
unambiguous and its application does not lead to absurd consequences, the provision
is applied as written with no further interpretation made in search of the Legislature’s
intent. Dejoie, 08-2223 at p. 6, 9 So.3d at 829; La. Civ. Code art. 9; La. R.S. 1:4. In
the event the language of a statute is susceptible of different meanings, the
interpretation must best conform to the purpose of the law. C.C. art. 10. When

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analyzing legislative history, it is presumed the Legislature’ s actions in crafting a
law were knowing and intentional. M.J. Farms, 07-2371 at pp. 13-14, 998 So.2d at
27. More particularly, this court must assume the Legislature was aware of existing
laws on the same subject, as well as established principles of statutory construction
and the effect of their legislative acts. Id.
Louisiana Civil Code art. 2315(A) provides:
Every act whatever of man that causes damage to another obliges him
by whose fault it happened to repair it.

Louisiana Civil Code art. 2316 provides:
Every person is responsible for the damage he occasions not merely by
his act, but by his negligence, his imprudence, or his want of skill.

Thus, a plaintiff is allowed to assert a claim against a party who has caused
him or her harm.
Louisiana’s Code of Civil Procedure establishes a system of fact pleading. La.
Code Civ. Proc. art. 891. So long as the facts constituting a cause of action are
alleged, the party may be granted any relief to which he is entitled under the
pleadings and the evidence; the “theory of the case” doctrine, under which a party
must select a theory of his case or defense and adhere to it throughout the litigation,
has been abolished. First S. Prod. Credit Ass’n v. Georgia-Pac. , 585 So.2d 545,
548 (La. 1991). This allows a plaintiff to recover under whatever legal theory is
appropriate based on the facts pleaded. Perkins v. Scaffolding Rental & Erection
Serv., 568 So.2d 549, 553 (La. 1990). Further, Louisiana Code of Civil Procedure
art. 892 provides for pleading two or more causes of action in the alternative, “even
though the legal or factual bases thereof may be inconsistent or mutually exclusive.”
The tort of negligent hiring was expressly recognized by this court in Roberts
v. Benoit as cognizable under Louisiana fault principles embodied in Civil Code
article 2315. Roberts, 605 So.2d 1032 (La. 1991). In Roberts, this court noted that

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common law jurisprudence views a claim that is subject to respondeat superior and
a claim of negligent hiring as distinct:
The former is based on the [employee’s] negligence, which is imputed
to the [] employer; the latter is based upon the employer’s independent
negligence in hiring, commissioning, training and/or retaining the
[employee]. These two theories of liability are sepa rate and
independent.

Roberts, 605 So.2d at 1037. Likewise, negligent entrustment has also been
recognized as a cause of action in Louisiana. See, e.g., Stokes v. Stewart, 99-0878
(La. App. 1 Cir. 12/22/00), 774 So.2d 1215.
In this case the plaintiff alleges both the employer and the employee were
negligent. Concerning respondeat superior ,
3 Louisiana Civil Code art. 2317
provides in part:
We are responsible, not only for the damage occasioned by our own
act, but for that which is caused by the act of persons for whom we are
answerable, or of the things which we have in our custody.

In addition, Louisiana Civil Code art. 2320 provides in part:
Masters and employers are answerable for the damage occasioned by
their servants and overseers, in the exercise of the functions in which
they are employed.
In the above cases, responsibility only attaches, when the masters
or employers . . . might have prevented the act which caused the
damage, and have not done it.
The master is answerable for the offenses and quasi -offenses
committed by his servants, according to the rules which are explained
under the title: Of quasi-contracts, and of offenses and quasi-offenses.

Thus, the law states that an employer is not only responsible for his or her
own tortious conduct but also for that of an employee in the exercise of the function
of the employment.
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3 As noted in Dennis v. Collins, vicarious liability is not “a cause of action, but rather a method
of holding one party liable for the conduct of another, of which respondeat superior is merely a
species.” No. 15-2410, 2016 WL 6637973, at *5 (W.D. La. Nov. 9, 2016).

4 We also note that La. R.S. 9:3921(A) provides:
Notwithstanding any provision in Title III of Code Book III of Title 9 of the
Louisiana Revised Statute s of 1950 to the contrary, every master or employer is
answerable for the damage occasioned by his servant or employee in the exercise
of the functions in which they are employed. Any remission, transaction,
compromise, or other conventional discharge in f avor of the employee, or any

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Furthermore, Louisiana Civil Code art. 2323(A) provides:
In any action for damages where a person suffers injury, death, or loss,
the degree or percentage of fault of all persons causing or contributing
to the injury, death, or loss shall be determined, regardless of whether
the person is a party to the action or a nonparty, and regardless of the
person’s insolvency, ability to pay, immunity by statute, including but
not limited to the provisions of R.S. 23:1032, or that the other person’s
identity is not known or reasonably ascertainable. If a person suffers
injury, death, or loss as the result partly of his own negligence and
partly as a result of the fault of another person or persons, the amount
of damages recoverable shall be reduced in proportion to the degree or
percentage of negligence attributable to the person suffering the injury,
death, or loss.

Louisiana Civil Code art. 2324(B) provides:

If liability is not solidary pursuant to Paragraph A, then liability for
damages caused by two or more persons shall be a joint and divisible
obligation. A joint tortfeasor shall not be liable for more than his degree
of fault and shall not be solidarily liable with any other person for
damages attributable to the fault of such other person, including the
person suffering injury, death, or loss, regardless of such other person's
insolvency, ability to pay, degree of fault, immunity by statute or
otherwise, including but not limited to immunity as provided in R.S.
23:1032, or that the other person’s identity is not known or reasonably
ascertainable.

Louisiana Code of Civil Procedure art. 1812, titled “Special Verdicts,”
provides in part:
C. In cases to recover damages for injury, death, or loss, the court at the
request of any party shall submit to the jury special written questions
inquiring as to:
(1) Whether a party from whom damages are claimed, or the
person for whom such party is legally responsible, was at fault,
and, if so:
(a) Whether such fault was a legal cause of the damages,
and, if so:
(b) The degree of such fault, expressed in percentage.

***

(3) If appropriate, whether there was negligence attributable to
any party claiming damages, and, if so:

judgment rendered against him for such damage shall be valid as between the
damaged creditor and the employee, and the employer shall have no right of
contribution, division, or indemnification from the employee nor shall the employer
be allowed to bring any incidental action under the provisions of Chapter 6 of Title
I of Book II of the Louisiana Code of Civil Procedure against such employee.

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(a) Whether such negligence was a legal cause of the
damages, and, if so:
(b) The degree of such negligence, expressed in
percentage.

In Thompson v. Winn-Dixie Montgomery, Inc., a plaintiff filed suit against
a grocery store, which in turn filed a third -party demand against a cleaning service
contracted to provide floor care and janitorial services to the grocery store.
Thompson, 2015-477, p. 1 (La. 10/14/15), 181 So.3d 656, 658 -59. The cleaning
service filed a third-party claim against its subcontractor for those services. Id. at p.
1, 181 So.3d at 659. The jury returned a verdict in favor of the plaintiff, finding the
subcontractor 70 percent at fault and the grocery store 30 percent at fault. Id. On
appeal, the court amended the district cour t’s judgment, holding that the grocery
store was statutorily 100 percent at fault , referencing La. R.S. 9:2800.6, which
provides for the duty and burden of proof in a negligence case against a merchant.
Id. at p. 4, 181 So.3d at 660. In reversing the court of appeal, this court wrote:
[T]he language of Articles 2323 and 2324 clearly and unambiguously
provides that comparative fault principles apply in “any action for
damages” and apply to “any claim” asserted under “any law or legal
doctrine or theory of liability.” It is indisputable that under the express
provisions of La. C.C. art. 2323, 100% of the causative fault for a harm
must be allocated in actions for an injury under any theory of liability.
See H. Alston Johnson, 12 La. Civ. L. Treatise, Tort Law §§ 8.5 &
16.29 2d ed.). As this court squarely held in Dumas, 828 So.2d at 537-
39, Articles 2323 and 2324 require that each actor be assigned an
appropriate percentage of fault regardless of the legal theory of liability
asserted against each person, and that each joint tortfeasor is only liable
for his degree of fault. . . . “The fundamental purpose of Louisiana’s
comparative fault scheme is to ensure that each tortfeasor is responsible
only for the por tion of the damage he has caused.” Miller v.
LAMMICO, 07 -1352 (La.1/16/08), 973 So.2d 693, 706. Statutory
duties imposed on one tortfeasor do not excuse joint tortfeasors from
the consequences of their own negligent acts.

Thompson, pp. 9-10, 181 So.3d at 664.

Under Louisiana’s pure comparative fault regime, the negligence “of all
persons,” including those not in the litigation, those without the ability to pay, and
the injured victim him- or herself, “shall” be assigned a percentage of fault. La. Civ.

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Code art. 2323; La. Code Civ. Proc. art. 1812. In addition, a joint tortfeasor cannot
be liable for more than his or her degree of fault. La. Civ. Code art. 2324. It is
possible that an employer and an employee may both be assigned a percentage of
fault, depending on the facts. An employer will still be financially responsible for an
employee’s percentage of fault if the employee was in the course and scope of
employment. The initial assessment of fault required by the law is not bypassed due
to the employer-employee relationship.
The assessment of fault shall be made first as required by law. If any fault is
assessed to the employee, and if it is determined that the employee was in the course
and scope of the employment, then the employer becomes financially responsible
for the employee’s fault under the theory of respondeat superior. This societal
decision as to who actually pays does not change the manner of assessing fault to all
parties as required by law.
It has been noted that the rule that the defendant would have us adopt is a relic
of contributory negligence that is not compatible with a comparative fault regime .
Natalie R. Earles, Stipulating Vicarious Liability to Avoid Direct Negligence Claims:
Why T his Relic of the Past Should be Abandoned in Louisiana, Louisiana Law
Review (Mar. 28, 2022, 2:00 P.M.), https://lawreview.law.lsu.edu/2021/10/27/
stipulating-vicarious-liability-to-avoid-direct-negligence-claims-why-this-relic-of-
the-past-should-be-abandoned-in-louisiana.
Louisiana Civil Code art. 2323 was rewritten in 1979 to “ eliminate the
judicially created rule that contributory negligence was a complete bar to the
plaintiff’s recovery, and to substitu te a procedure by which any negligence on the
part of the plaintiff would operate as a percentage reduction of his recovery .”
Murray v. Ramada Inns, Inc. , 521 So. 2d 1123, 1132 (La. 1988) . U nder
contributory negligence principles, if a plaintiff is assigned any percentage of fault
by the fact-finder, that plaintiff cannot recover. Under comparative fault, the fault of

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the plaintiff mitigates damages but does not defeat them entirely. As noted by
another jurisdiction, the rule prec luding a plaintiff from bringing direct negligence
claims against an employer who has admitted course and scope “loses much of is
force” when applied in a comparative negligence regime. Lorio v. Cartwright, 768
F. Supp. 658, 660 (N.D. Ill. 1991).
Shielding a potential tortfeasor from liability is not compatible with a
comparative negligence regime, however. As the federal district court in Gordon v.
Great West Casualty Co. noted:
Where an employer’ s potential fault is merged with that of the
employee, the j ury might not have a true picture of either party’s
wrongful acts — which may, in turn, magnify the comparative fault of
the plaintiff or other individuals. For instance, a plaintiff involved in a
car accident may bring a claim of negligence against a defendant truck
driver who failed to exercise adequate care while driving on icy roads.
If the employer then stipulates to vicarious liability, the plaintiff cannot
also maintain a claim based on the employer’ s negligent training or
supervision of the employee. Accordingly, evidence that the company
failed to train employees on how to encounter that hazard or required
them to push on with their loads despite the conditions could be ruled
inadmissible — as other defendants have argued in multiple cases
before this court. If admitted, the evidence could also tend to make the
employee look less culpable. After all, is it really his fault that he was
not properly trained or supervised? And the verdict sheet leaves no
other place to account for the employer’s direct negligence. If the jury
decides to go easier on the employee, other individuals — for instance,
the plaintiff or drivers of other vehicles involved in the accident —
necessarily become more culpable and the fundamental purpose of
comparative fault is f rustrated. Likewise, where the employer can
exclude evidence or avoid any public airing of its direct negligence
merely because it is also financially liable under a theory of vicarious
liability, the deterrent aims of tort law are thwarted. In effect, under
such a rule, the employer would serve as insurer for the employee rather
than codefendant and need not even have its identity revealed to the
jury.

Gordon v. Great W. Cas. Co., No. 2:18-CV-967, 2020 WL 3472634, at *4 (W.D.
La. June 25, 2020).
Defendants point to the federal district court opinion in Dennis v. Collins as
support for their contention that direct negligence claims are “subsumed” by claims
against an employee once course and scope are admitted. Dennis, 2016 WL

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6637973, at *3 . In Dennis, a Greyhound bus struck a car in which plaintiff was a
passenger. Id. at *1. The plaintiff alleged that the bus driver was negligent in his
driving and that his employer, Greyhound Lines, was negligent in the supervision
of, teaching, and training the driver. Id. Greyhound stipulated to the fact that the
driver was acting in the course and scope of employment at the time of the accident.
Id. at *5. Greyhound then filed a motion for partial summary judgment seeking
dismissal of the direct claims against it. Id. at *1.
The Dennis court stated at the outset that because there was no binding
precedent on this issue under Louisiana law, it would be making “its best Erie
guess.” Id. at *2. Based on previously decided state and federal cases, the Dennis
court drew a distinction between cases where course and scope were contested or
where the tort was intentional and cases where an employer had admitted course and
scope at the time of the accident. Id. at *6. The Dennis court opined that where
course and scope was an issue or where the tort was intentional, a plaintiff may
simultaneously maintain independent causes of action against an employee and
employer. Id. at *6 -7. On the other hand, according to Dennis , if an employer
stipulates to course and scope, a plaint iff may not simultaneously maintain direct
causes of action against the employer. Id. at *7.
The Dennis court reasoned that an employer could not be found liable of
negligent hiring if the employee was not also negligent. Id. at *8. Said another way,
even if the employer had been negligent in hiring the employee, there is no way that
the employer’s negligence could have been either the but-for cause or the legal cause
of the injury to the plaintiff. Id.
Dennis has been used as support in a number of federal and state decisions on
this issue.
5 Dennis relied on Libersat v. J & K Trucking, which, at the time Dennis

5 See, e.g., Elee v. White, 19-1633 (La. App. 1 Cir. 7/24/20), --- So.3d ---; Landry v. Nat’l
Union Fire Ins. Co. of Pittsburg, 19-337 (La. App 5 Cir. 12/30/19), 289 So.3d 177; Perro v.
Alvardo, 20-339 (La. App. 3 Cir. 9/30/20), 304 So.3d 997; Wilcox v. Harco Int’l Ins., No. 16-

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was decided, was one of the only Louisiana cases that discussed the exact issue of a
plaintiff not being allowed to put on evidence of negligent hiring and training after
an employer admitted course and scope. Libersat , 00-192 (La. App. 3 Cir.
10/11/00), 772 So.2d 173. On appeal, plaintiffs in Libersat assigned error to the trial
court’s refusal to instruct the jury on the employer’s duty in hiring and training the
employee. Id. at p. 2, 772 So.2d at 175. The appellate court, reviewing for abuse of
discretion, opined:
[T]his Court finds that the trial court’s instructions regarding [the
employer’s] possible liability are an accurate reflection of the law.
Patterson, as Mr. Mitchell’s employer, would be liable for his actions
under the theory of respondeat superior. If Mr. Mitchell breached a
duty to the [plaintiffs], then Patterson is liable under the the ory of
respondeat superior. If Mitchell did not breach a duty to the [plaintiffs]
then no degree of negligence on the part of Patterson in hiring Mitchell
would make Patterson liable to the [plaintiffs]. The trial judge has the
responsibility of reducing the possibility of confusing the jury, and he
may exercise the duty to decide what law is applicable. Sparacello v.
Andrews, 501 So.2d 269 (La. App. 1 Cir.1986), writ denied, 502 So.2d
103 (La. 1987). The court did not err in using its discretion to omit
[plaintiffs’] requested jury instructions regarding negligent hiring and
training because they were not appropriate in this case.

Id. at pp. 10 -11, 772 So.2d at 179. Libersat was correct in pointing out that an
employer can only be liable under theories of negligent hiring, supervision, training
and retention, and negligent entrustment if the employee is at fault, and that the
employer cannot be liable if the employee is not at fault. As noted in Libersat, “no
degree of negligence” on the part of the employer in hiring the employee would
make the employer liable if the employee did not breach a duty to the plaintiff. This
is an accurate, but limited, observation. The possibility that both the employee and
employer may be at fault is not thus foreclosed or “subsumed.” Our traditional civil
jury instruction on this point provided in part:
When I say that the injury must be shown to have been caused by the
defendant’s conduct, I don’ t mean that the law recognizes only one
cause of an injury, consisting of only one factor or thing, or the conduct

187, 2017 WL 2772088 (M.D. La. June 26, 2017); but see Gordon v. Great W. Cas. Co., No.
18-967, 2020 WL 3472634, at *4-5 (W.D. La. June 25, 2020).

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of only one person. On the contrary, a number of factors may operate
at the same time, either independently or together, to cause injury or
damage.

H. Alston Johnson III, Civil Jury Instructions, in 18 Louisiana Civil Law Treatise
§ 3:3 (3d ed. 2021). If no fault is shown on the part of the employee, the inquiry is
ended, because there is no cause-in-fact or legal cause. But if fault is shown on the
part of the employee, then the issue of whether there is also fault on the part of the
employer remains an open question which must be decided according to the evidence
on a case by case basis. The fault of both the employer and employee “shall be
determined.” C.C. art. 2323. Depending on the evidence, the employer may well be
entitled to summary judgment. And, i n a case like Libers at, if the evidence is
lacking, a jury instruction at trial regarding an employer’s negligence may not be
appropriate. But the employer does not automatically prevail on summary judgment
as a matter of law merely by stipulating that the employee was in the course and
scope of employment. T he evidence should determine whether the negligence of
both the employer and the employee caused the damages claimed . The application
of theories of vicarious liability or respondeat superior occur only if a degree of fault
has been assessed to the employee in the course and scope of employment, for which
the employer becomes financially responsible.
Based on the foregoing, we conclude that the district court erred granting the
motion for partial summary judgment in favor of the defendants as a matter of law.
Under Louisiana law, f ault is compared, not “subsumed” due to the application of
the theory of respondeat superior after fault has been determined.
DECREE
Accordingly, we reverse the district court ruling and remand.
REVERSED AND REMANDED.

1
S
UPREME COURT OF LOUISIANA
No
. 2021-C-01490
RE
GINALD MARTIN
VS.
RODNEY THOMAS, GREER LOGGING, LLC and NATIONAL
LIABILITY AND FIRE INSURANCE COMPANY
O
n Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Caddo
C
richton, J., additionally concurs and assigns reasons:
I
agree with the majority that the plaintiff in this matter may maintain his
claims against both the employee and the employer even if the employer has
stipulated to vicarious liability for the employee’s negligent acts. It is significant that
defendants do not argue that plaintiff’s employer negligence claims lack factual
support. Instead, they take the position that all such claims must be dismissed as a
matter of law where it is stipulated that the employee was in the course and scope of
employment. To the contrary, Louisiana Civil Code article 2323 provides, by its
plain language, that the fault of “all persons causing or contributing” to the plaintiff’s
loss “shall be determined . . . under any law or legal doctrine or theory of liability,
regardless of the basis of liability.” (Emphasis added.) See also La. C.C.P. art. 892
(“[A] petition may set forth two or more causes of action in the alternative, even
though the legal or factual bases thereof may be inconsistent or mutually
exclusive.”).
We have long held that the vicarious liability claim for which an employer
may be responsible by law – regardless of causation – and the negligent hiring claim
for which an employer may be liable by its own acts of negligence are “two theories
of liability [that] are separate and independent.” Roberts v. Benoit, 605 So. 2d 1032,
1037 (La. 1991), on reh'g (May 28, 1992) . Where cau sation is established,

2

comparative fault applies and requires the trier of fact to consider “both the nature
of the conduct of each party at fault and the extent of the causal relation between the
conduct and the damages claimed.” Watson v. State Farm Fire & Cas. Ins. Co., 469
So. 2d 967, 974 (La. 1985) . Because defendants have failed to disprove that some
fault may be allocated to both the employer and the employee due to the negligent
actions of each, comparative fault requires that the claims against the employer be
maintained at this point in the proceedings. WILLIAM E. CRAWFORD, Allocation of
fault, 12 LA. CIV. L. TREATISE, Tort Law § 8:5 (2d ed.) (“Under the express
provisions of C.C. art. 2323, a s implemented by C.C.P. art. 1812c, 100% of the
causative fault for a harm must be allocated, whether to parties or nonparties.”).
Of course, a plaintiff’s claim for negligent hiring must be meritorious. See La.
Rule Prof. Conduct 3.1 (a lawyer shall not assert a claim “unless there is a basis in
law and fact for doing so that is not frivolous”). Furthermore, after adequate
discovery it may be that summary judgment in favor of the employer is warranted
because no genuine issues of mate rial fact exist and defendant employer is thus
entitled to summary judgment as to the negligent hiring claim. Where an employer’s
negligence is established, however, comparative fault analysis will apply at the trial
on the merits.
For these reasons, and t hose set forth by the majority , I agree to reverse the
lower courts and remand to the trial court for further proceedings, including
necessary discovery.

SUPREME COURT OF LOUISIANA
No. 2021-C-01490
REGINALD MARTIN
VS.
RODNEY THOMAS, GREER LOGGING, LLC and NATIONAL
LIABILITY AND FIRE INSURANCE COMPANY
On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Caddo
Crain, J., concurring,
I write separately to emphasize that on th e issue presented, often the
distinction between vicarious liability and fault has been lost . Vicarious liability
involves a shifting of financial responsibility , not fault. If an employee is in the
course and scope of employment and causes injury, the employer is financially
responsible for the employee’s fault. La. Civ. Code art. 2320. That determination
is not based on the employer’s fault. See Roberts v. Benoit, 605 So.2d 1032, 1036-
37 (La. 1991). It is an independent financial responsibility based on the employment
relationship. Id.
Separately, an employer can be assigned fault under any viable theory of
liability available against the employer. La. Civ. Code art. 2315. If it involves
negligent hiring, supervision, training, retention, or a negligent entrustment claim ,
the factfinder will simply compare and weigh the acts of bo th the employee and
employer, then assign fault. La. Civ. Code art. 2323. I agree with the majority.