Jennifer Cross and Jennifer Cross on Behalf of the Minor Child N.C. v. St. Bernard Parish School Board and David Kimberly

J.C. AND J.C. ON BEHALF OF * NO. 2021-CA-0111
THE MINOR CHILD N.C.1
*
VERSUS COURT OF APPEAL
*
ST. BERNARD PARISH FOURTH CIRCUIT
SCHOOL BOARD AND DAVID *
KIMBERLY STATE OF LOUISIANA
*******

APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 17-1384, DIVISION “A”
Honorable Robert J. Klees, Judge Pro Tempore
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Joy Cossich Lobrano, Judge Regina Bartholomew-
Woods, Judge Paula A. Brown)

Harold E. Weiser
WEISER LAW FIRM, LLC
3801 Canal Street, Suite 205
New Orleans, LA 70119

Ilijana Todorovic
Andy Dupre
THE DUPRE LAW FIRM, LLC
705 Constantinople Street
New Orleans, LA 70115

COUNSEL FOR PLAINTIFF/APPELLANT

D. Scott Rainwater
Claire E. Sauls
TAYLOR, WELLONS, POLITZ & DUHE, APLC
4041 Essen Lane, Suite 500
Baton Rouge, LA 70809

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

FEBRUARY 04, 2022

1
See note 2, infra.

JCL
RBW
PAB Plaintiff/Appellant, J.C., 2 individually and on behalf of her minor child

N.C., appeals the district court’s judgment granting the motion for summary

judgment filed by Defendant/Appellee, St. Bernard Parish School Board (“School

Board”), and dismissing all of J.C.’s claims against the School Board. J.C. also

appeals the district court’s judgment denying her motion for a new trial. For the

reasons that follow, we reverse the judgment granting the motion for summary

judgment and remand this matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

During the 2013-2014 school year, N.C. was a fifth-grade student at a public

elementary school in St. Bernard Parish, Lacoste Elementary School. David

Kimberly (“Kimberly”) was his special education teacher. During the school year,

Kimberly obtained J.C.’s permission to take N.C. on weekend outings, including

taking N.C. mini-golfing, to the zoo, and to the park. In Kimberly’s responses to

J.C.’s first set of interrogatories, Kimberly stated he took N.C. on these outings

2
Certain parties will be referred to by their initials to protect the minor child’s identity. See I.F.
v. Administrators of the Tulane Educational Fund, 13-0696, p. 3 n. 1 (La.App. 4 Cir. 12/23/13),
131 So.3d 491, 494 (where this Court noted that “because of the sensitive nature of the facts of
this case, we have chosen to use some witnesses’ and parties’ initials in lieu of their names . . .”).

1

because N.C. “made the honor roll for the first time, had been selected as ‘Terrific

Kid,’ and student of the month, as well as meeting all of his goals.”

Kimberly engaged in other activities with N.C. that were without J.C.’s prior

knowledge or consent. J.C. testified in her deposition that she brought N.C. to

school early one day so that he could work on a project for the robotics club. She

described Kimberly’s positon with the robots club as “sponsor” or “coach.” When

J.C. picked N.C. up from school that afternoon, N.C. told her that “[Kimberly] had

[taken] him off the school property to go eat breakfast at IHOP.” No one

accompanied Kimberly and N.C. on this outing. J.C. testified she did not report

the unauthorized trip to IHOP because she “trusted the school [and] trusted this

teacher with [her] child.” According to N.C.’s therapy notes, N.C. stated Kimberly

“kissed [him] on the head one time, …asked him a couple of times to wear

diapers…[once] while they were having lunch at school and once while in the

park,” and “volunteered to change the diapers of the students at school.”

In or about October of 2014, J.C. and N.C. moved to Tennessee for reasons

unrelated to this litigation. Prior to the move, Kimberly set up a special email

account for N.C. In an email to N.C., Kimberly wrote: “From now on you can use

this email address for me. Don’t forget to sign out when you are done!” In another

email to N.C., Kimberly wrote: “I really want to talk to you sometime when you

are alone. I have some things to show you and I want you to show me somethings.”

In December 2016, J.C. accessed N.C.’s email on his tablet and discovered

several recent emails from Kimberly containing pictures of “training pull-ups,

potty seats that had been used and not clean, guys at bars, bottles.” In a March 27,

2017 therapy session, N.C. stated “Mr. Kimberly sent him pictures of soiled

diapers to the email he set up for him.” Additionally, N.C. stated “Mr. Kimberly

2

offered to travel to [Tennessee], obtain a hotel room and have [N.C.] stay with

him.”

J.C. filed suit against Kimberly and the School Board on October 26, 2017.

The petition for damages included negligence claims against the School Board,

including negligent hiring and supervision.

The School Board filed a motion for summary judgment on March 24, 2020

requesting the district court dismiss J.C.’s claims against the School Board. The

School Board asserted that Kimberly’s actions were not reasonably foreseeable and

therefore it “[could] not be found negligent and [could] not be held liable” for

Kimberly’s inappropriate conduct. In support of its motion, the School Board

submitted the petition, the deposition of J.C., the affidavit of Paul Granberry, the

Supervisor of Personnel for the School Board, the affidavit of Doris Voitier, the

Superintendent for St. Bernard Parish public schools, and the School Board’s

Second Supplemental Answers to Plaintiff’s Interrogatories and Requests for

Documents.

The affidavits of Paul Granberry and Doris Voitier stated, inter alia, that (1)

“[p]rior to employing Kimberly, the School Board had a background check

conducted on Kimberly, which revealed no prior criminal history,” (2) “[p]rior to

employing Kimberly, [Paul Granberry] reviewed his employment application,

which denied previous terminations or disciplinary infractions at his work at other

schools,”3 (3) “[p]rior to employing Kimberly, the School Board had no knowledge

of any prior criminal history or disciplinary complaints involving Kimberly [and]

had no knowledge of any information that would suggest Kimberly had a

propensity to exhibit inappropriate behavior towards students, or minors in

3
This fact is not contained in Doris Voitier’s affidavit.

3

general,” (4) “N.C.’s curriculum did not call for any weekend activities,” and (5)

“[t]he School Board had no knowledge of Kimberly meeting with N.C. outside of

the regular class schedule.” In its Response to Interrogatory No. 2, the School

Board stated “[it] had no knowledge of the alleged incidents described . . . in

Plaintiffs’ Petition until contacted by . . . the St. Bernard Parish Sheriff’s

Department on January 5, 2017.”

J.C. filed an opposition to the School Board’s motion for summary

judgment. J.C. argued that the School Board’s motion for summary judgment

addressed “only the negligence-based concept of foreseeability – a concept that

controls only the plaintiff’s claims for negligent hiring and supervision by the

School Board” and failed to address vicarious liability and that Kimberly’s tortious

conduct was reasonably foreseeable under the case law governing vicarious

liability.4

The School Board filed a reply. In its reply, the School Board argued that the

petition pled negligence claims only against the School Board and did not plead

vicarious liability, that direct negligence claims and vicarious liability claims

against an employer are mutually exclusive, and that the School Board could not

be held liable as a matter of law under either negligence or vicarious liability

principles for Kimberly’s tortious actions.5

4
J.C. further argued that the motion for summary judgment was premature since only one
deposition, that of J.C., had been taken, documents relating to Kimberly’s employment requested
from the School Board had not been turned over, and written discovery propounded to Kimberly
remained unanswered, which was the subject of discovery motions filed against Kimberly set for
hearing on September 10, 2020.
5
Further, in response to J.C.’s argument that the summary judgment motion was premature, the
School Board argued that J.C. had been afforded a reasonable opportunity for adequate discovery
in the two plus years that had passed since the institution of the lawsuit.

4

J.C. filed a sur-reply. J.C. argued that under Louisiana’s system

of fact pleading, a plaintiff need not plead the “theory” of his case in the petition

and may recover under any legal theory justified by the facts alleged in the

petition. J.C. asserted that the facts pled in her petition were sufficient to put the

School Board on notice of J.C.’s vicarious liability claim.

J.C. further argued in her sur-reply that this Court has not adopted the

mutually exclusive rule cited by the School Board, which precludes a plaintiff from

simultaneously maintaining direct negligence and vicarious liability claims against

an employer for an employee’s tortious conduct, and, in fact, has held an employer

liable on both negligence and vicarious liability claims for damages caused by an

employee. See Harrington v. Louisiana State Bd. of Elementary & Secondary

Educ., 97-1670 (La. App. 4 Cir. 5/20/98), 714 So.2d 845. Further, J.C. maintained

that, even if this Court were to adopt such a rule, the rule does not prohibit

recovery against an employer for both negligence and vicarious liability claims

where the plaintiff alleges an intentional tort by the employee or, where the

plaintiff alleges negligence by the employee, the employer does not stipulate that

the employee acted in the course and scope of employment. Finally, J.C. argued

that, under the prevailing case law, the School Board could be held vicariously

liable for Kimberly’s tortious conduct.

The district court granted the School Board’s motion for summary judgment

after conducting a hearing on September 10, 2020, and on September 21, 2020, the

court signed a judgment granting the motion and dismissing all of J.C.’s claims

against the School Board, with prejudice.

J.C. filed a motion for new trial on September 29, 2020, arguing that the

granting of summary judgment was clearly contrary to the law and that newly

5

discovered evidence, namely, Kimberly’s forthcoming discovery responses,6

provided additional support for J.C.’s opposition to the School Board’s motion for

summary judgment. At the hearing on the motion for new trial conducted on

October 22, 2020, J.C. introduced a copy of Kimberly’s written discovery

responses, which Kimberly had emailed to J.C. the night before. The district court

denied the motion for new trial. A judgment denying the motion for new trial was

signed on November 4, 2020. This appeal followed.

DISCUSSION

In this appeal, J.C. sets forth a single assignment of error, contending that

the district court erred as a matter of law in granting summary judgment in favor of

the School Board and denying a new trial.

Preliminary Matters

The pivotal issue raised on appeal is whether the district court committed

legal error in granting the School Board’s motion for summary judgment,

particularly with respect to claims of vicarious liability. Prior to addressing this

issue, we discuss two critical preliminary matters. First, we address whether

vicarious liability on the part of the School Board was pled in the petition. The

School Board argues that the petition pled claims against the School Board based

on negligence only, while J.C. argues that the facts alleged in the petition were

sufficient to put the School Board on notice of J.C.’s vicarious liability claim.

Second, if we find the Petition pled vicarious liability, we address whether J.C.

6
Immediately after the hearing on the School Board’s motion for summary judgment on
September 10, 2020, the district court took up the motion J.C. had filed against Kimberly to
compel discovery and to have requests for admission of fact deemed admitted. During the course
of the hearing, Kimberly agreed to provide discovery responses within thirty days of the hearing.

6

may maintain both negligence claims and vicarious liability claims against the

School Board.

La. C.C.P. art. 891 requires a petition to “contain a short, clear, and concise

statement of all causes of action arising out of, and of the material facts of, the

transaction or occurrence that is the subject matter of the litigation ...” “Under the

system of fact pleading established by La. Code Civ. Proc. Ann. art. 891 and other

codal articles, plaintiffs are not required to specifically label a claim or special

defense as such.... Plaintiffs should be awarded any recovery allowable under any

legal theory justified by the facts the plaintiff has alleged in his or her petition.”

Greemon v. City of Bossier City, 10-2828, p. 13 (La. 7/1/11), 65 So.3d 1263, 1271

n. 7 (citation omitted). “[T]he ‘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.” Brown v. Adolph, 96-1257, p. 6 (La. App. 1 Cir.

3/27/97), 691 So.2d 1321, 1325 (citing Cox v. W.M. Heroman & Co., Inc., 298

So.2d 848, 855 (La. 1974)). “The defendant is not prejudiced if the petition fairly

informs the defendant of the nature of the plaintiff’s claims and the plaintiff acts

consistently therewith.” Id. (citing First South Production Credit Ass’n v. Georgia-

Pacific, 585 So.2d 545, 548-49 (La. 1991); Brewhouse, Ltd. v. New Orleans Public

Service, Inc., 614 So.2d 118, 125 (La. App. 4th Cir. 1993)).

In the case sub judice, the petition alleges that “the cause of action arises out

of the ongoing inappropriate behavior by David Kimberly towards minor N.C.

occurring at Lacoste Elementary School located in St. Bernard Parish,” “David

Kimberly was employed by the St. Bernard Parish School Board as a teacher at

Lacoste Elementary at the time the minor N.C. was enrolled in Lacoste

Elementary,” “Mr. Kimberly was a special needs teacher at Lacoste Elementary

7

School with the minor child, N.C., in his class in 2014,” and that Kimberly’s

inappropriate conduct with N.C. started while Kimberly was N.C.’s special needs

teacher. In its answer, the School Board pled that “it has no vicarious liability for

the criminal acts allegedly committed by David Kimberly.” Further, in its sur-reply

brief in support of its motion for summary judgment, the School Board argued that

it could not be held vicariously liable for Kimberly’s intentional acts and sought

the dismissal of all J.C.’s claims against it, including any vicarious liability claim.

The facts included in the petition were more than sufficient to put the School

Board on notice that vicarious liability was at issue. The School Board’s defense

would have been the same in any event, and the School Board can show no

prejudice. Accordingly, we find that the petition presented a vicarious liability

claim against the School Board.7

Defendant argues that “it is well-settled that direct negligence claims and

vicarious liability claims against an employer are mutually exclusive” and

therefore, “[J.C.] cannot be permitted to pursue both [negligence and vicarious

liability] claims against the School Board.” Dennis v. Collins, No. CV 15-2410,

2016 WL 6637973 (W.D. La. Nov. 9, 2016), cited by the School Board, is the

seminal case on this point of law. In Dennis, the court stated as follows:

A plaintiff may simultaneously maintain independent
causes of action in tort against both an employee and an
employer for the same incident when:

(1) the plaintiff alleges both

(a) an intentional tort by the employee and

7
Notably, in Dennis, No. CV 15-2410, 2016 WL 6637973, at *5 (W.D. La. Nov. 9, 2016), the
court noted that “‘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.”

8

(b) negligent hiring, training, and/or supervision by
the employer; or

(2) the plaintiff alleges both

(a) negligence by the employee and

(b) negligent hiring, training, and/or supervision by
the employer; and

(c) the employer does not stipulate that the
employee acted in the course and scope of
employment.

Conversely, a plaintiff may not simultaneously maintain
independent causes of action in tort against both an
employee and an employer for the same incident when
the plaintiff alleges both

(a) negligence by the employee and

(b) negligent hiring, training, and/or supervision by
the employer; and

(c) the employer stipulates that the employee acted
in the course and scope of employment.

Id., No. CV 15-2410, 2016 WL 6637973, at *6-7 (emphasis in original; footnotes

omitted).8

8
Most federal courts that have addressed this issue have agreed with Dennis that claims for
negligent hiring, training, or supervising against an employer are encompassed within a vicarious
liability claim against the employer when the employer stipulates that the employee was in the
course and scope of employment. See, e.g., Wilcox v. Harco Int’l Ins., No. CV 16-187-SDD-
EWD, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017) (dismissing independent negligence
claims against an employer based on Dennis where it was undisputed that the employee was
acting in the course and scope of his employment with the employer at the time of the accident);
Rivera v. Robinson, No. CV 18-14005, 2020 WL 5658899, at *4 (E.D. La. Sept. 23, 2020)
(“[W]hen the employer has stipulated to vicarious liability for the employee’s negligent act,
plaintiffs may not simultaneously maintain a cause of action for respondeat superior liability and
for direct negligence (negligent entrustment) against an employee.”); Marcello v. Holland, No.
CV 19-14609, 2020 WL 5960684, at *3 (E.D. La. Oct. 8, 2020) (“Because Plaintiff has asserted
negligence claims against . . . the employee, as well as direct negligence and vicarious liability
claims against . . . the employer, and [the employer] has admitted that [the employee] ‘was acting
in the course and scope of his employment’ . . . Plaintiff’s direct negligence claims against [the
employer] must be dismissed.”); Meadors v. D’Agostino, No. CV 18-01007, 2020 WL 1529367,
at *3 (M.D. La. Mar. 30, 2020) (“[W]hen an employer stipulates to course and scope, the
plaintiff cannot also maintain a direct negligence claim against the employer.”); Pigott v. Heath,
CV 18-9438, 2020 WL 564958, at *3-4 (E.D. La. Feb. 5, 2020); Zinamon v. STR Transport, Inc.,
CV 19-656, 2021 WL 725801, at *3-6 (M.D. La. Feb. 24, 2021). However, in Gordon v. Great

9

In the case sub judice, J.C. has alleged an intentional tort by Kimberly.

Additionally, the School Board has not admitted Kimberly was acting in the course

and scope of his employment. Accordingly, Dennis does not bar J.C. from

pursuing both negligence and vicarious liability claims against the School Board. 9

Motion for Summary Judgment

We apply a de novo standard of review in examining a trial court’s ruling

on summary judgment. Hare v. Paleo Data, Inc., 11-1034, p. 9 (La. App. 4 Cir.

4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that govern a

trial court’s consideration of whether summary judgment is appropriate. Id.

“In ruling on a motion for summary judgment, the judge’s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

instead to determine whether there is a genuine issue of triable fact. All doubts

should be resolved in the non-moving party’s favor.” Hines v. Garrett, 04-0806, p.

1 (La. 6/25/04), 876 So.2d 764, 765. “A fact is material if it potentially insures or

precludes recovery, affects a litigant’s ultimate success, or determines the outcome

of the legal dispute.” Id. (citation omitted). “A genuine issue is one as to which

W. Casualty Co., No. 2:18-CV-00967, 2020 WL 3472634, at *2-5 (W.D. La. June 25, 2020), the
court “reconsider[ed] its endorsement” of Dennis and held that the plaintiff’s direct negligence
claims against the employer were not subsumed by the employer’s stipulation of vicarious
liability for the employee’s negligence.

The First, Third, and Fifth Circuits have adopted the rule recognized in Dennis. See Elee v.
White, 19-1633, pp. 2-3 (La. App. 1st Cir. 7/24/20), --- So.3d ---, ---, 2020 WL 4251974, at *4-5;
Brandon v. Richard, 20-0738, p. 1 (La. App. 1 Cir. 10/26/20), 2020 WL 6275825, *1, writ
denied, 20-01357 (La. 1/26/21), 309 So.3d 343; Perro v. Alvarado, 20-339, p. 8 (La. App. 3 Cir.
9/30/20), 304 So.3d 997, 1001; Landry v. Nat’l Union Fire Ins. Co. of Pittsburgh, 19-337, pp.
12-14 (La. App. 5 Cir. 12/30/19), 289 So.3d 177, 185-86, writ denied sub nom. Landry v. Nat’l
Union Fire Ins. Co. of Pittsburgh, PA, 20-00188 (La. 5/1/20), 295 So.3d 945. The Louisiana
Supreme Court recently granted writs in a case presenting this issue. See Martin v. Thomas,
54,009 (La. App. 2 Cir. 8/11/21), 326 So.3d 334, reh’g denied (9/16/21), writ granted, 21-01490
(La. 12/21/21), 328 So.3d 1164.
9
In Harrington, this Court held an employer liable under both negligent hiring and vicarious
liability claims for an employee’s rape of a student. We need not and do not decide today
whether to adopt the rule recognized in Dennis.

10

reasonable persons could disagree; if reasonable persons could reach only one

conclusion, there is no need for trial on that issue and summary judgment is

appropriate. Id., 04-0806, p. 1, 876 So.2d at 765-66 (citation omitted).

On motion for summary judgment, the burden of proof remains with the

movant. La. C.C.P. art. 966(D)(1). However, if the moving party will not bear the

burden of proof on the issue at trial and points out that there is an absence of

factual support for one or more elements essential to the adverse party’s claim,

action, or defense, then the non-moving party must produce factual support

sufficient to establish that he will be able to satisfy his evidentiary burden of proof

at trial. Id. If the opponent of the motion fails to do so, there is no genuine issue of

material fact and summary judgment will be granted. Id. See also Schultz v.

Guoth, 10-0343, pp. 6-7 (La. 1/19/11), 57 So.3d 1002, 1006.

When a motion for summary judgment is made and supported as provided

in La. C.C.P. art. 967, an adverse party may not rest on the mere allegations or

denials of his pleadings, but his response, by affidavits or as otherwise provided

in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine

issue for trial. La. C.C.P. art. 967. If he does not so respond, summary judgment, if

appropriate, shall be rendered against him. 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 the

substantive law applicable to the case. Roadrunner Transp. Sys. v. Brown, 17-

0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith v. Our

Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751).

Vicarious Liability

11

The principle of vicarious liability or respondeat superior is codified

in Louisiana Civil Code article 2320, which provides that an employer is liable for

the tortious acts of its employees “in the exercise of the functions in which they are

employed.” La. C.C. art. 2320. The threshold question is whether the employee’s

conduct was in the course and scope of his employment. The “course of”

employment refers to the time and place, while the “scope of” employment refers

to being engaged in the functions for which employed. See Russell v. Noullet, 98-

0816, p. 4 (La. 12/1/98), 721 So.2d 868, 871 (citation omitted). “The inquiry

requires the trier of fact to determine whether the employee’s tortious conduct was

‘so closely connected in time, place and causation to his employment-duties as to

be regarded a risk of harm fairly attributable to the employer’s business, as

compared with conduct motivated by purely personal considerations entirely

extraneous to the employer’s interests.’” Id., 98-0816, pp. 4-5, 721 So.2d at 871

(quoting LeBrane v. Lewis, 292 So. 2d 216, 218 (La. 1974)).

“The question of whether an employee’s tortious conduct was sufficiently

employment-related that a court should impose vicarious liability upon the

employer is a mixed question of fact and law.” Id., 98-0816, p. 5, 721 So.2d at 871.

In LeBrane, the Louisiana Supreme Court identified four factors to be considered

in determining vicarious liability: (1) whether the tortious act was primarily

employment rooted; (2) whether the tortious act was reasonably incidental to the

performance of the employee’s duties; (3) whether the act occurred on the

employer’s premises; and (4) whether it occurred during the hours of employment.

292 So.2d at 218. “It is not necessary that all four factors be met in order to find

liability; each case must be decided on its specific facts.” Bates v. Caruso, 03-

2150, p. 5 (La. App. 4 Cir. 7/28/04), 881 So.2d 758, 762 (citation omitted).

12

Generally, an employee’s conduct is within the course and scope of his

employment if “the conduct is of the kind that he is employed to perform, occurs

substantially within the authorized limits of time and space, and is activated at least

in part by a purpose to serve the employer.” Orgeron v. McDonald, 93-1353, p. 4

(La. 7/5/94), 639 So.2d 224, 226-27. To determine whether an accident may be

associated with the employer’s business enterprise, it must be determined whether

“considering the authority given to the employee, the employee’s tortious conduct

was reasonably foreseeable.” Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La.

1990). One must consider whether the accident was part of the inevitable toll of a

lawful enterprise. Id. That the predominant motive of the employee is to benefit

himself does not prevent the employee’s conduct from falling within the scope of

his employment. Id., 559 So.2d at 477. If the purpose of serving the employer’s

business actuates the employee to any appreciable extent, the employer is subject

to liability. Id.

In contrast to negligence cases, in which the focus is on the employee’s

general activities at the time of the accident, in intentional tort cases the court must

determine “whether the tortious act itself was within the scope of the servant’s

employment.” Id., 559 So.2d at 478. Importantly, however, “the fact that an act is

forbidden or is done in a forbidden manner does not remove that act from the scope

of employment.” Id., 559 So.2d at 479. “The scope of risks attributable to an

employer increases with the amount of authority and freedom of action granted to

the servant in performing his assigned tasks.” Id., 559 So.2d at 477.

Louisiana courts have focused on abuse of authority in determining

vicarious liability for employees in positions of trust and authority. In Latullas v.

State, 94-2049 (La. App. 1 Cir. 6/23/95), 658 So.2d 800, the Louisiana First

13

Circuit Court of Appeal held the State of Louisiana liable for a prison guard’s rape

of a prisoner on prison grounds while the guard was in charge of a prisoner work

crew. The court reasoned that the guard was able to separate the plaintiff from

others and commit the rape because of the authority bestowed upon him by his

employer. 94-2049, p. 8, 658 So.2d at 804. The court acknowledged that the rape

was “totally unauthorized ... and motivated by ... personal desires.” Id. The court

nevertheless found vicarious liability because the rape occurred while the guard

was “acting for his employer in the control and supervision of inmates, and it was

through these duties that this opportunity arose.” 94-2049, p. 8, 658 So.2d at 804-

05.

In Turner v. State, 494 So.2d 1292 (La. App. 2d Cir. 1986), a recruiting

officer for the Louisiana National Guard induced four women to believe that he

had the authority to conduct physical exams, during which he touched them

inappropriately, while interviewing them for induction into the National

Guard. Id. at 1296. The court found the State vicariously liable for the recruiting

officer’s acts because the incident was made possible by the apparent authority of

the position the officer held with his employer. Id.

In Dismuke v. Quaynor, 637 So.2d 555 (La. App. 2d Cir. 1994), the court

affirmed the finding that Grambling University was vicariously liable for a rape

committed by one of its employees acting as a camp counselor. 637 So.2d at 562.

In doing so, the Court noted that though the employee was “technically off duty,”

the employee used and abused the supervisory authority conferred on him by the

university to get in close proximity with the victim and observe her until she was

alone. Id. at 561-62.

14

In Harrington, the director of a college culinary arts program took a female

student to a wine tasting event. The student had volunteered to help with an

upcoming wine tasting class for which she was expected to attend wine events

and gather information for the course. Id., 97-1670, pp. 2-3, 714 So.2d at 848.

After the wine tasting event, the director invited the student to accompany him to

business appointments he had at hotels and restaurants that night. The student

accepted the invitation in order to make contacts in the hotel/restaurant industry.

Id., 97-1670, p. 3, 714 So.2d at 848. After attending the appointments, the director

drove to the house of a friend who owned a restaurant. The friend was not at home.

When the director and the student returned to the car in the driveway, the director

raped the student. Id., 97-1670, pp. 3, 5-6, 714 So.2d at 848-49.

After a bench trial the district court found that the director was not in the

course and scope of his employment and the State was not vicariously liable. Id.,

97-1670, p. 2, 714 So.2d at 847. This Court reversed. The Court found that the

director’s position vis-à-vis the student was instrumental in the assault committed

by the director, that “[t]he director abused his position of authority when he raped

[the student],” and that “[c]onsidering the authority given to [the director], his

tortious conduct was reasonably foreseeable.” Id., 97-1670, p. 13, 714 So.2d at

852.

The evidence presented in the case sub judice established that Kimberly took

N.C. on weekend outings during the school year, including taking N.C. mini-

golfing, to the zoo, and to the park. Kimberly stated he took N.C. on these

excursions because N.C. “made the honor roll for the first time, had been selected

as ‘Terrific Kid,’ and student of the month, as well as meeting all of his goals.”

J.C. testified that when she picked N.C. up from school one afternoon, he told her

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that Kimberly had taken him to eat breakfast at IHOP that morning. She testified

that she did not report the incident because she “trusted the school [and] trusted

this teacher with [her] child.”

N.C. told his therapist about disturbing behavior by Kimberly that occurred

during the school year. According to N.C.’s therapy notes, Kimberly “kissed [him]

on the head one time, …asked him a couple of times to wear diapers…[once] while

they were having lunch at school and once while in the park,” and “volunteered to

change the diapers of the students at school.”

J.C. testified that after the move to Tennessee, she discovered several

recent emails from Kimberly on N.C.’s tablet that contained pictures of “training

pull-ups, potty seats that had been used and not clean, guys at bars, bottles.” N.C.

told his therapist that “Mr. Kimberly sent him pictures of soiled diapers to the

email he set up for him” and “offered to travel to [Tennessee], obtain a hotel room

and have [N.C.] stay with him.”

We find that the evidence in this case is sufficient to support the claim of

vicarious liability being presented to a fact finder. Thus, we conclude that the

district court erred when it granted summary judgment and dismissed all of J.C.’s

claims against the School Board.10

CONCLUSION

For the reasons assigned, we reverse the judgment of the district court

granting summary judgment in favor of the School Board and dismissing all J.C.’s

claims against the School Board, and remand the matter to the district court for

further proceedings consistent with this opinion.

REVERSED AND REMANDED

10
Given our disposition, we do not reach J.C.’s appeal of the denial of her motion for new trial.

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