Terrance Bolden, Heidi Bolden, And Taylor Bolden Vs.

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 28th day of January, 2022 are as follows:
BY Hughes, J.:
2021-CC-00224 TERRANCE BOLDEN, HEIDI BOLDEN, AND TAYLOR BOLDEN VS.
MICHAEL TISDALE, SMG, NEWELL D. NORMAND, AND
BUCCANEERS LIMITED PARTNERSHIP (Parish of Orleans Civil)
REVERSED; REMANDED WITH INSTRUCTIONS. SEE OPINION.

SUPREME COURT OF LOUISIANA
NUMBER 2021-CC-00224
TERRANCE BOLDEN, HEIDI BOLDEN, AND TAYLOR BOLDEN
VERSUS
MICHAEL TISDALE, SMG, NEWELL D. NORMAND, AND
BUCCANEERS LIMITED PARTNERSHIP
ON SUPERVISORY WRIT TO THE ORLEANS CIVIL DISTRICT COURT,
PARISH OF ORLEANS
HUGHES, J.
At issue on the motion for summary judgment filed in this case is whether the
Tampa Bay Buccaneers football organization is vicariously liable , as an employer,
for the alleged negligence of an off-duty Jefferson Parish sheriff’s deputy, who was
part of a motorcycle escort for the team’s buses as they traveled from the Superdome
to the New Orleans airport, when the motorcycle the deputy was riding collided with
another deputy directing traffic on foot in an intersection . We hold that the
unrebutted evidence presented by the defendants moving for summary judgment
showed there was no employee -employer relationship between the deputy sheriff
and the Buccaneers under the facts and circumstances of this case ; therefore, we
reverse the denial of the Buccaneers’ motion for summary judgment and remand to
the district court for entry of a summary judgment in favor of the defendants, for the
following reasons.
FACTS AND PROCEDURAL HISTORY
In September of 2015 the Buccaneers played the New Orleans Saints in the
New Orleans Superdome. In preparation for the game, the Buccaneers ’ Director of
Football Security Operations, Andres Trescastro, contacted the New Orleans Police
Department (“NOPD”) to request motorcycle escorts, by off-duty law enforcement
for officers, for the team’s buses traveling in the New Orleans area, which were to
01/28/22

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include an escort after the game when the team buses would travel from the
Superdome to the Louis Armstrong International Airport. NOPD agreed to provide
the necessary off -duty officers , along with officers from the Jefferson Parish
Sheriff’s Office (“JPSO”), for the Buccaneer team buses.
Following the September 20, 2015 game, off-duty NOPD an d JPSO
motorcycle officers commenced escorting the Buccaneers ’ buses from the
Superdome to the airport, with uniformed JPSO Deputy Michael Tisdale operating
a JPSO-owned motorcycle as the final motorcycle i n the motorcade, following the
last bus. After the Buccaneers ’ buses had cleared the intersection of Girod Street
and Loyola Avenue, Deputy Tisdale’s motorcycle was engaged in turning right from
Girod Street onto Loyola Avenue when it collided with JPSO Deputy Terrance
Bolden, who was on foot to provide pedestrian traffic control at the intersection.
As a result of injuries allegedly suffered in the accident, Deputy Bolden and
his wife (“plaintiffs” herein) filed suit against several parties, including the
defendants who filed the motion for summary judgment at issue, Buccaneers Limited
Partnership and its insurers, Ohio Security Insurance Company, Liberty Mutual
Insurance Company, and Nautilus Ins urance Company ( collectively referred to as
“defendants” herein). Plaintiffs alleged that the Buccaneers were vicariously liable
for the negligence of Deputy Tisdale and that Deputy Tisdale was acting within the
course and scope of his employment with the Buccaneers.
Following discovery, the defendants moved for summary judgment , arguing
Deputy Tisdale was not an employee of the Buccaneers and they could not be
vicariously liable for his action s. The defendants further asserted that the
Buccaneers did not exercise, and could not have exercised, control over the public
safety and traffic regulation methods that the law enforcement personnel used in
conducting the escort , which is exclusively reserved to law enforcement officers
under Louisiana’s Highway Regulatory Act, La. R.S. 32:1, et seq.

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In support of their motion for summary judgment, the defendant s introduced
the depositions of Mr. Trescastro, JPSO Deputy Michael Tisdale, NOPD Lieutenant
Kenny Prepetit , JPSO Sergeant Jeff Navo, JPSO Deputy Ben Green, a nd JPSO
Deputy Jerry Bonds.
Mr. Trescastro testified that, prior to the September 2015 game, he submitted
a written request for motorcade escort services that indicated t he dates, times, and
locations the Buccaneers would need, and he included some specifi c request s he
believed would be helpful for the safe movement of the motorcade based on his prior
experience as a law enforcement officer; his letter stated in pertinent part as follows:
It is requested that all buses be escorted from their point of origin
to our destination with least amount [sic] of delays. When necessary,
lights and sirens are requested to ensure safe travel through lights and
turns in an effort to maintain the integrity of the escort keeping all buses
together. [A]t any time if there are any Standard Operating Procedures
that prohibit you from using lights or sirens, please let me know as soon
as possible. Should you have any questions regarding this arrangement
please do not hesitate to contact me….
Every means possible should be employed to ensure a safe and
expedient thruway for the team’s buses as we make our departure. We
request when escorts witness vehicles penetrating into the escort party
(between buses) that every means necessary will be employed to direct
them out of the escort line. It is also requested that unmarked vehicles
not be used as part of the escort party, due to the proven ineffectiveness
of such vehicles.

(Emphasis added; original emphasis omitted.)
Regarding his letter, Mr. Trescastro testified in his deposition: “I give the day
and times of our arrivals, our movements. … And the rest … law enforcement has
always taken care of how they get us there … whichever route. That ’s their
responsibility. I never question that, nor do I really have any say -so in how they
perform their duties. I can ’t respectfully.” Mr. Trescastro explained: “I organize
from the point of view of advising the visiting city jurisdiction … how is it and what
time is it that we’re going to get there, what airport, where we’re staying, what time
we’re playing, and … after the game concludes, what airport we ’re going … to fly
back to Tampa. ” He further stated: “I rely on the expertise of the entities … I go

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through. I cannot tell them you’re going to do this, this, this, because that would be
a disrespect to that law enforcement, so I do not. All we request is an escort from
Point A to Point B.”
After receivin g the request for a motorcade escort, NOPD transmitted an
“Escort Invoice ” to the Buccaneers increasing the number of motorcycle officers
from the number the Buccaneers had requested , on NOPD’s determination that
additional officers were necessary, and billing the Buccaneers $1,955. JPSO issued
a separate invoice to the Buccaneers in the amount of $600.
JPSO Sergeant Jeff Navo, who was a traffic supervisor at the time of his 2020
deposition, indicated that at the time of the 2015 accident at issue herein h e was a
deputy in the JPSO traffic division. Sergeant Navo stated that when a party requests
a motorcycle escort, they specify a date, time, and location(s) for the private detail ,
but that all requests made are subject to the discretion of the law enforcement officers
as to method and safety. Sergeant Navo testified that, regardless of the number of
motorcycle officers requested for a motorcade escort, the law enforcement officers
determine what number of motorcycle officers are necessary for safety , and the law
enforcement officers ultimately increase or decrease the number of motorcycle
officers that will be used as they deem necessary. Sergeant Navo also indicated that,
whether or not a request is made that motorcycle officers use lights and sirens, lights
are always used and sirens will only be used in the discretion of the officers , based
on the safety assessment s made by th e officers . Sergeant Navo testified that the
safety judgment of the law enforcement officers assigned to the escort detail always
prevails over the request of the party to be escorted . Sergeant Navo further stated
that the officers for a particular escort detail are selected by a JPSO traffic division
clerk, who assigns the next available officer from an alphabetical list on a rotating
basis. Sergeant Navo also stated that he is a JPSO instructor for motorcycle escort
officers, and any officer who is assigned to operate a motorcycle is trained for escort

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details. Sergeant Navo denied that there were any written JPSO Standard Operating
Procedures for off -duty motorcade escort details , as all training is provided by the
motorcycle instructors. With regard to payment for the off-duty officers on an escort
detail, Sergeant Navo indicated that sometimes cash or check payment may be made
directly to the officers working on the detail, while at other times a check is sent to
JPSO for the total amount owed for the escort detail and JPSO then pays the
individual officers. Sergeant Navo stated that private persons or companies cannot
serve as motorcycle escorts , as such escorts can only be obtained through
governmental agencies. When an NFL team is being escorted, Sergeant Navo
indicated that there is very little conversation between the law enforcement officers
providing motorcade escorts and the team officials, unless the official makes a
request of some sort; otherwise, the team bus d river will usually blow his horn to
indicate to the motorcycle officers that the buses are ready to go. Sergeant Navo
further stated that he was not personally involved in the off-duty motorcade assigned
to the Buccaneers in September of 2015, but he noted that JPSO Deputy Ben Green
and JPSO Deputy Jerry Bonds (who both currently work for him) were on that
motorcade detail. Sergeant Navo concluded his testimony by pointing out that
motorcycle officers are not only concerned with the safety of those being escorted
in a motorcade, but they are also concerned with the safety of the officers, other
drivers, pedestrians, and everyone along the route; for this reason, even though the
off-duty officers are being paid by the party being escorted, they must still refuse
any requests by the escorted party that the officers deem unsafe.
JPSO Deputy Michael Tisdale testified, by deposition, that he h ad been a
deputy sheriff for over seventeen years, working in the traffic department since 2009
as an accident investigator. Deputy Tisdale testified that he had been doing
motorcycle escorts since 2010, and he was assigned to work the 2015 Buccaneer
escort detail. Deputy Tisdale testified that, on the day of the accident, the motorcycle

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officers were gathered behind the Superdome waiting for the team buses to leave for
the airport. When the team was ready to go, Superdome security team members
removed the barricades, and a team bus blew its horn to signal they were ready to
go. Deputy Tisdale testified that the motorcycle officers are usually all “backed in
at a particular location” and the officer closest to the starting point will take off first;
it is their job to cover the intersection s the buses will be proceeding through, so the
motorcycles “leap frog” up, in turn, to cover the intersections. He also stated that,
among the motorcycle officers in the escort detail, no one officer is in charge, sinc e
they all work together on a regular basis and everyone knows what to do. According
to Deputy Tisdale, the motorcycle officers determine the route that is to be taken to
the airport, and it is a standard route they have used for several years. Deputy Tisdale
further stated that the only personal contact they have with a NFL team ’s staff is
when they get paid by the staff, immediately before the team buses leave the
Superdome. Deputy Tisdale stated that , on September 20, 2015 , the buses were
being escorted out of the Superdome parking lot on Girod Street, heading toward
Loyola Avenue, and that when he was preparing to make his turn onto Loyola
Avenue, he saw Lieutenant Prepetit in the intersection giving him the thumbs up
(meaning it was safe to enter the intersection) and, when he did so, plaintiff Deputy
Bolden stepped into the intersection into his travel path and the collision at issue
herein occurred.
NOPD Lieutenant Kenny Prepetit testified, during his 2017 deposition, that
he had been empl oyed by the New Orleans Police Department for nineteen years
and, at the time of the accident at issue, he worked in the traffic department.
Lieutenant Prepetit testified that, on the day of the accident, he was working a paid
detail for “SMG” ( the company managing the Superdome) at the intersection of
Girod Street and Loyola Avenue, a detail he had worked for several years.
Lieutenant Prepetit stated that he was the supervisor for that intersection, and he

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assigned people to their positions, monitored all traffic and pedestrians, determined
how to manage pedestrian and vehicular traffic before and after the game, and gave
all the instructions to the other officers working in that intersection. Because an
escort detail from the Superdome to the airport travels through two parishes (Orleans
Parish and Jefferson Parish), Lieutenant Prepetit indicated that the escort detail is
comprised of officers from both parishes. When the motorcade is ready to leave the
Superdome parking lot, one of the Orleans Parish officers generally calls Lieutenant
Prepetit to advise that the motorcade is on the way to his intersection. On receiving
this information, Lieutenant Prepetit tells those working in his intersection to hold
all traffic and pedestrians so the motorcade can pass through the intersection. On
the day of the accident, Lieutenant Prepetit stated that all of the buses and motorcycle
officers passed safely through the intersection, except Deputy Tisdale’s motorcycle,
which was bringing up the rear of the motorcade . Lieutenant Prepetit, also a
motorcycle officer, knew that after the last bus passed through the intersection there
would be one more motorcycle officer, and he had not released the intersection to
other traffic before Deputy Tisdale entered it . Nevertheless, Lieutenant Prepetit
testified that when Deputy Tisdale entered the intersection Deputy Bolden stepped
into the street into the path of Deputy Tisdale’s motorcycle, and the accident at issue
occurred.
JPSO Deputy Jerry Bonds testified in hi s deposition that he worked as an
escort in the September 2015 Buccaneer motorcade; however, he did not witness the
accident in question. Deputy Bonds stated that he had been a motorcycle officer for
over twenty years , and he ha d been involved in many mot orcycle escorts . He
indicated that motorcycle officers are assigned by JPSO to an escort detail from an
alphabetical list, on a rotating basis. In the September 2015 Buccaneer motorcade,
he stated that two NOPD motorcycle officers led the motorcade, foll owed by his
fellow JPSO motorcycle officer Deputy Ben Green, and he followed Deputy Green.

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Deputy Bonds stated that no particular officer of the escort was in charge of the
detail, since they all knew what to do. Deputy Bonds denied having any personal
contact with the Buccaneer organization members, except possibly being paid by a
Buccaneer staffer for the job. Deputy Bonds denied that any Buccaneer staffer had
anything to do with how the escort was conducted, since that was entirely up to the
law enforcement officers making up the escort detail , who exclusively determined
the route and other means of getting the buses to the airport .
In his deposition testimony, JPSO Deputy Ben Green agreed that he worked
as an escort in the September 2015 Buccaneer mot orcade; however, he did not
witness the accident in question. Deputy Green stated that he had been doing
motorcycle escorts for over ten years, and he had been involved in many motorcycle
escorts. Deputy Green indicated that motorcycle officers are assig ned by JPSO to
an escort detail from an alphabetical list , on a rotating basis. Deputy Green stated
that no particular officer of the escort detail was in charge of the detail, since they
all knew what to do. Those officers who preferred to lead the moto rcade would do
so, and the others would follow. Deputy Green indicated that these type s of
motorcades usually follow the same route and that intersections were sometimes
covered by traffic officers along the way but , if they were not , the motorcycle
officers would “leap frog ” to cover unmanned intersections. Although Deputy
Green testified that he did not personally know the traffic officers covering
intersections, he would usually recognize their faces as the same traffic officers
would often work on game days. Deputy Green denied having any contact with
Buccaneer staffers on the day of th e 2015 accident, and he denied that the team
staffers ever have any input on choosing the route to be taken to the airport.
The plaintiffs introduced no evidence , in connection with th e motion for
summary judgment at issue, to oppose that submitted by the defendants. However,
they did reference evidence filed by the defendants, including requesting that the

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district court consider evidence contained in the record filed in connection with a
prior motion for summary judgment. In particular, the plaintiffs c ited the January
17, 2018 affidavit of Captain Greg Lonero, asserting that the facts stated therein
created a question of material fact, stating in pertinent part :
1. I am currently employed by Joseph P. Lopinto, III, interim Sheriff
of the Parish of Jefferson, as successor to Newell Normand, the
former sheriff of the Parish of Jefferson (hereinafter “Sheriff
Lopinto”). At the time of the September 20, 2015 accident which is
the subject of the captioned matter, I was employed by Newell
Normand, Sheriff of the Pa rish of Jefferson (hereinafter “Sheriff
Normand”) as the commander of the Traffic Division for the
Jefferson Parish Sheriff’s Office.”
2. All paid private details requiring a motorcycle escort are
administered through the Traffic Division. At the time of the
September 20, 2015 accident, this policy was in place.
3. A paid private detail is off duty employment performed by a
Jefferson Parish police officer. This off duty employment is
unrelated to the police officer [’]s employment with Sheriff Lopinto
and is not in the course and scope of the police officer [’]s
employment with Sheriff Lopinto. At the time of the September 20,
2015 accident, this off duty employment was unrelated to the police
officer[’]s employment wit h Sheriff Normand and was not in the
course and scope of the police officer [’]s employment with Sheriff
Normand.
4. At the time of the September 20, 2015 accident, Deputy Michael
Tisdale (hereinafter “Deputy Tisdale ”) was off duty and was
performing a private paid detail for the Buccaneers Limited
Partnership (hereinafter “the Buccaneers”). This paid private detail
was unrelated to Deputy Tisdale ’s employment with Sheriff
Normand and was not in the course and scope of Deputy Tisdale ’s
employment with Sheriff Normand. The private paid detail which
Deputy Tisdale was performing for the Buccaneers consisted of
participating in a motorcycle escort of buses transporting the
Buccaneer team buses to Louis Armstrong New Orleans
International Airport.
5. It is the current policy of the Traffic Division for the Jefferson Parish
Sheriff’s Office and it was the policy at the time of the September
20, 2015 accident that all paid private details involving motorcycle
escorts comply with the following instructions of the entity for
which the private paid detail is performed (a) utilize the type of
vehicle required by the entity, (b) adhere to the dates, times and
locations as so directed by the entity, and (c) payment for the
services rendered pursuant to the paid private detail.
6. During the time frame of September 19, 2015 through September
20, 2015, the motorcycle escorts performing the private paid details
for the Buccaneers complied with the Buccaneers [’] instructions (a)
by utilizing the type of vehicle required by the Buccane ers, (b) by
adhering to the dates when the escorts were to be present, (c) by
adhering to the times when the escorts were to be present, (d) by

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being present at the locations designated, and ( [e]) by making
payment for the services rendered pursuant to the paid private detail.

The district court denied the defendants’ motion for summary judgment, and
the appellate court denied the defendants ’ writ application. See Bolden v. Tisdale,
No. 2015-10094, 2020 WL 7571082 (La. Orl. Civ. D. Ct. 11/5/20) (unpublished),
writ denied , 20-C-0677 (La. App. 4 Cir. 1/15/21) (unpublished) (Ledet, J.,
dissenting: “I would find that [the] Buccaneers established its lack of control
sufficient to warrant finding it was not Mr. Tisdale’s employer and that it is entitled
to summary judgment. Accordingly, I would reverse the trial court ’s judgment.”).
This court granted the defendants ’ writ application. Bolden v. Tisdale , 21-00224
(La. 4/13/21), 313 So.3d 1222.
The defendants contend that the “trial court and Fourt h Circuit erred when
they denied the motion for summary judgment when the undisputed material facts
and relevant legal authority establish that JPSO Deputy Tisdale was not an employee
of [the Buccaneers] at the time of the accident and that [the Buccaneers] cannot be
vicariously liable for any alleged negligence of JPSO Deputy Tisdale in the
commission of the law enforcement motorcade. ” Contrarily, the plaintiffs urge this
court to uphold the denial of t he defendants ’ motion for summary judgment,
asserting that when this court “reviews the entire record and considers the law on
these important questions, it should conclude, as the lower courts did, that the
Buccaneers had the right to control the motorcad e that they arranged and that
seriously injured Deputy Bolden.”
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 Louisiana, LLC , 14-
0288, p. 3 (La. 10/15/14), 171 So.3d 851, 854; Catahoula Parish School Board v.
Louisiana Machinery Rentals, LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065,

11

1071. Thus, we use the same criteria that govern the district court ’s consideration
of whether summary ju dgment is appropriate. Id. Pursuant to L a. C.C.P. art.
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 as
to 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 Article 969 ;
the procedure is favored and shall be construed to accomplish these ends. La. C.C.P.
art. 966(A)(2).
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 essential elements of the adverse party ’s claim, action, or defense, but
rather to point out to the court the absence of factual support for one or more
elements essential to the adverse party ’s claim, action, or defense. La. C.C.P. 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. C.C.P. art. 967(A)2], an adverse party may

1 See La. C.C.P. 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. C.C.P. 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).”).

2 See La. C.C.P. 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 there in. 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

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not rest on the mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided [in La. C.C.P. art. 967(A)], must set forth specific
facts showing that there is a genuine issue for trial . I f he does not so respond,
summary judgment, if appropriate, shall be rendered against him. ” La. C.C.P. art.
967(B).
The question presented in the instant case is whether any material questions
of fact remain.3 The defendants contend that the evidence presented demonstrates
that the Buccaneers requested a motorcycle escort for its team buses on the specified
dates, times, and locations in the New Orleans area, along with several other requests
as to the number of motorcycles, use by the motorcycle officers of lights and sirens,
and that other motorists be kept out from between the motorcade vehicles; however,
the Buccaneers maintain that aside from the specified dates, times, and locations the
requests made were merely requests that could have been granted, modified, or
denied at the di scretion of the law enforcement officers who were conducting the
motorcade escorts. The plaintiffs claim the motorcycle officers became employees
of the Buccaneers while they conducted the motorcade escorts because the
Buccaneers had the right to control the activities of the motorcade escorts. Thus, the
propriety of a motion for summary judgment in favor of the Buccaneers hinges on
whether the Buccaneers pointed to the absence of factual evidence that it became the
employer of the alleged tortfeasor, Dep uty Tisdale, under the facts and

affirmatively that the affiant is competent to testify to the matters stated therein.”).

3 A fact is material if its existence or nonexistence may be essential to a plaintiff’s cause of action
under the applicable theory of recovery. Facts are material if they potentially insure or preclude
recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.
Penalber v. Blount, 550 So.2d 577, 583 (La. 1989). Because it is the applicable substantive law
that determines materiality, whether a particular fact in dispute is material for summary judgment
purposes can be seen only in light of the substantive law applicable to the case. Jackson v. City
of New Orleans, 12-2742, p. 6 (La. 1/28/14), 144 So.3d 876, 882; Richard v. Hall, 03-1488, p. 5
(La. 4/23/04), 874 So.2d 131, 137. Bec ause plaintiffs will bear the burden of proof at trial,
defendants’ burden on summary judgment is to show an absence of factual support for one or more
elements essential to plaintiffs’ claim. See Hester v. Walker, 20-01278, p. 5 (La. 5/13/21), 320
So.3d 362, 366 (per curiam).

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circumstances presented in this case and, if so, whether the plaintiffs thereafter came
forward with sufficient factual support to show a genuine issue of material fact
remained regarding whether the Buccaneers bec ame the employer of Deputy
Tisdale.
The single most important factor to consider in deciding whether the
employer-employee relationship exists , for purposes of La. C.C. art. 2320 , is the
right of the employer to control the work of the e mployee. Roberts v. State,
Through the Louisiana Health and Human Resources Administration , 404
So.2d 1221, 1225 (La. 1981) (citing Hickman v. Southern Pacific Transportation
Company, 262 La. 102, 262 So.2d 385 (1972) , and Blanchard v. Ogima, 253 La.
34, 215 So.2d 902 (1968)). In Blanchard, this court stated: “It is the right of control
of the time and physical activities in the other party and the existence of a close
relationship between the parties which determine that one is a servant.” Id., 253 La.
at 44, 215 So.2d at 905. This court further stated: “‘Servant’ must be interpreted as
that particular kind of agent who has a very close economic relation to, and is subject
to very close control by , the principal. A servant is one who offers his personal
services for a price. He is an integral part of his employer’s business and must submit
to the control of his physical conduct as well as of his time.” Id., 253 La. at 47, 215
So.2d at 906. The four primary evidentiary factors considered in deci ding whether
such a n employer-employee relationship exists relate to whether the alleged
employer has the right or duty, relative to the employee, of: (1) se lection and
engagement; (2) payment of wages; (3) power of dismissal; and (4) power of control.
Hillman v. Comm-Care, Inc., 01-1140, p. 8 (La. 1/15/02), 805 So.2d 1157, 1162 .
However, no one factor is controlling; rather, the totality of the circumstances must
be considered, and the burden of proof is on the party seeking to establish an
employer-employee relationship. Hillman, 01-1140 at pp. 8-9, 805 So.2d at 1163.
In contrast to the employer -employee relationship, the status of an

14

independent contractor connotes a freedom of action and choice with respect to the
undertaking in question and a legal responsibility on the part of the contractor in case
the agreement is not fulfilled in accordance with its covenants. Hickman v.
Southern Pacific Transport Company , 262 La. 102, 117, 262 So.2d 385, 390
(1972). An independent contractor relationship presupposes a contract between the
parties, the independent nature of the contractor ’s business , and the nonexclusive
means the contractor may employ in accomplishing the work. Id. Moreover, it
should appear that the contract calls for specific p iecework as a unit to be done
according to the independent contractor’s own methods, without being subject to the
control and direction, in the performance of the service, of his employer, except as
to the result of the services to be rendered. Id. It must also appear that a specific
price for the overall undertaking is agreed upon; that its duration is for a specific
time and not subject to termination or discontinuance at the will of either side
without a corresponding liability for its breach. Id., 262 La. at 117, 262 So.2d at
390-91. The law further recognizes the inquiry to determine whether a relationship
is that of independent contractor or that of a servant/employee requires, among other
factors, the application of the principal test: the control over the work reserved by
the employer. Id., 262 La. at 117, 262 So.2d at 391. In applying this test it is not
the supervision and control which is actually exercised which is significant; the
important question is whether, from the nature of the relationship, the right to do so
exists. Id., 262 La. at 117-18, 262 So.2d at 391.
The distinction between an employee and an independent contractor status is
a factual determination to be decided on a case -by-case basis. Tower Credit, Inc.
v. Carpenter, 01-2875, p. 6 (La. 9/4/02), 825 So.2d 1125, 1129.
On the issue of selection and engagement , the deposition testimony of the
Buccaneers’ security director, Andres Trescastro, and documents attached thereto,
show that the request for a motorcade escort was directed by the Buccaneers to

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Lieutenant Anthony Micheu of the New Orleans Police Department, and the
testimony of JPSO Sergeant Jeff Navo, JPSO Deputy Ben Green, and JPSO Deputy
Jerry Bonds established that the law enforcement agencies select the individuals who
will work on the escort details and in what capacity . JPSO requires all of its
motorcycle officers to accept escort a ssignments unless there is a valid family or
medical excuse to refuse the off -duty assignment. There was no indication that the
Buccaneers had any power to either select officers for the escort detail or to fire the
officers selected by a law enforcement agency.
On the issue of payment of wages , the testimony of Mr. Trescastro and
accompanying documentation showed that NOPD billed the Buccaneers $1,955 for
NOPD officer s to be assigned to the escort detail and request ed that a check be
submitted payable to the Office of Police Secondary Employment ( “OPSE”), and
the NOPD invoice stated that JPSO Captain Greg Lonero should be contacted as to
the arrangements of payment of the JPSO officers. A copy of the Buccaneers’ check
made payable to OPSE, in the amount of $1,955 , was attached to Mr. Trescastro ’s
deposition. A copy of the JPSO invoice to the Buccaneers was also attached to the
deposition of Mr. Trescastro, billing the Buccaneers for the JPSO motorcycle escort
officers and requesting cash payment.
On the issue of control over the activities of the motorcycle escort officers,
even though the officers testified that the y made every effort to accommodate any
requests of the entity requesting an escort, the officers nevertheless decided
independently of the requesting entity whether to grant, deny, or modify such
requests based on their own safety evaluations.
The totality of the evidence presented by the defendants in connection with
their motion for summary judgment demonstrated that the relationship between the
motorcycle officers and the Buccaneers was more akin to that of independent
contractors, rather than employees, since the Buccaneers did not select or hire the

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individual officers, the Buccaneers did not always make direct payment to the
officers, and the Buccaneers did not control the methods employed by the officers
in conducting the motorcade escort. While the Buccaneers necessarily set the dates,
times, and locations for the job (details that were dictated by the date, time, and
location of the NFL game the Buccaneers were traveling to and from), the overall
motorcade escort job called for “specific piecework as a unit” to be done according
to the motorcycle officers’ own methods, without being subject to the control and
direction in the performance of the service by the Buccaneers, except as to the result
of the services rendered (i.e., a successful motorcade esc ort). Therefore, the
defendants’ showing on motion for summary judgment was sufficient to point out
the absence of factual evidence that the motorcycle officer Deputy Tisdale became
an employee of the Buccaneers, and the plaintiffs were required to then come
forward with sufficient factual support to establish the existence of a genuine issue
of material fact regarding whether the Buccaneers did become the employer of
Deputy Tisdale , in order to defeat a ruling adverse to them on the motion for
summary judgment.
When a motion for summary judgment is made and supported as required by
law, an adverse party may not rest on the mere allegations or denials of his pleadings,
but his responding evidence must set forth specific facts showing that there is a
genuine issue for trial; if he does not so respond, summary judgment, if appropriate,
shall be rendered against him pursuant to La. C.C.P. art. 967(B). Bufkin, 14-0288
at p. 11, 171 So.3d at 858; Luther v. IOM Company, 13-0353, p. 6 (La. 10/15/13),
130 So.3d 817, 822; Dejoie v. Medley , 08-2223, p. 10 (La. 5/5/09), 9 So.3d 826,
832; Samaha v. Rau, 07-1726, p. 5 (La. 2/26/08), 977 So.2d 880, 883.
The plaintiffs filed no supporting documents along with t heir opposition to
the defendants ’ motion for summary judgment, pursuant to La. C.C.P. art.
966(A)(4), and the only record evidence pointed to by the plaintiffs as supporting

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their position was the affidavit testimony of JPSO Traffic Division commander,
Captain Greg Lonero, who stated in his affidavit that it was the policy of the JPSO
traffic division to comply with the instructions of the entity for whom a motorcycle
escort was performed. Notwithstanding, this statement by Captain Lonero does not
contradict the deposition testimony offered by the defendants (via the deposition
testimony of Andres Trescastro, JPSO Deputy Michael Tisdale, NOPD Lieutenant
Kenny Prepetit, JPSO Sergeant Jeff N avo, JPSO Deputy Ben Green, and JPSO
Deputy Jerry Bonds), which showed that although an entity requesting a motorcycle
escort through Orleans and Jefferson Parishes may make request s, in addition to
providing the dates, times, and locations for the needed escort, which the law
enforcement officers providing the escort will try to accommodate, the law
enforcement officers providing the escort have the ultimate authority to conduct the
escort in accordance with their own safety assessments. The affidavit testimony of
Captain Lonero merely stated the general policy of honoring requests by the entity
to be escorted, but did not directly contradict the deposition testimony of other
officers regarding when they could not honor such requests, i.e., when safety
concerns dictated otherwise.4
We note that plaintiffs also cited the cases of Wright v. Skate Country, Inc.,
734 So.2d 874 (La. App. 4 Cir. 5/12/99), writ denied, 99-2272 (La. 11/5/99), 750
So.2d 194, Duryea v. Handy, 96-1018 (La. App. 4 Cir. 10/03/97), 700 So.2d 1123,
and Kramer v. Continental Casualty Company , 92 -1131 (La. App. 3 Cir.
6/22/94), 641 So.2d 557, writ not considered , 94-2576 (La. 12/19/94), 648 So.2d

4 We note that, in the plaintiffs’ brief to this court, emphasis is placed on a “tweet” posted online
by a “Nick Jacobs from Kansas City, MO,” allegedly remarking on the NFL team coach of the
Raiders directing a police escort to “take a victory lap” around “Arrowhead Stadium” (apparently
referenced in support of the plaintiffs’ argument that the Buccaneers had the power to control the
motorcade route in the instant case) ; however, putting aside the relevancy vel non of such a
statement, there is no indication that this statement appears as an item of evidence filed in the
district court in connection with the motion for summary judgment at issue . See La. C.C.P. art.
966, 2015 Revision Comment (k) (“[Article 966,] Subparagraph (D)(2) makes clear that the court
can consider only those documents filed in support of or in opposition to the motion.”).

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399, writs denied, 94-2473, 94-2474, 94-2475 (La. 12/19/94), 648 So.2d 402 -03,
which they contend establish that off-duty law enforcement officers, working private
details, become the employees of the entities that hire them. However, we
distinguish the cases relied on by the plaintiffs, since they involved off-duty law
enforcement officer s performing private duty premises security, and premises
security differs significantly from a motorcade escort in that the private entities
hiring premises security officers must necessarily have greater control over the work
performed by the officers given that the private entities in the cited cases had custody
and control over the premises they were occupying . In contrast, governmental
entities have exclusive control over public thoroughfares ; thus, in the context of a
motorcycle escort , the law enforcement officers conducting the escort cannot
relinquish control over the public roadways over which the motorcade travels to the
private entities who request a motorcycle escort. See La. R.S. 32:1, et seq.
(Louisiana Highway Regulatory Act); Blair v. Tynes , 621 So.2d 591, 596 (La.
1993) (“The legislature has gi ven law enforcement officers the exclusive power to
regulate traffic….”).
In Blair v. Tynes, two attendees to a Mardi Gras event, held by a krewe at an
American Legion Hall, were injured by a motorist while crossing the street after
parking in the Hall’s parking lot, despite the presence of off-duty deputy sheriff s
hired by the Hall to provide security between the premises where the Hall was
located and where the parking lot was located, for pedestrian crossing . Blair v.
Tynes, 621 So.2d 593-94. Unlike the facts and circumstances presented in Blair v.
Tynes, the motorcycle officers in the instant case were not engaged to provide
security on the requesting entity’s physical premises, but rather on the public
roadways in the New Orleans area, an d the Buc caneers did not have the power to
hire and schedule the deputies or to assign particular duties to the motorcycle
officers.

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Based on the foregoing, we conclude that the district court erred in failing to
grant the motion for summary judgment in favor of the defendants, under the facts
and circumstances of this case, on the defendants’ showing that the Buccaneers did
not become the employer of Deputy Tisdale merely because the deputy participated
in a motorcycle escort for the Buccaneer team buses, and on the plaintiffs’ failure to
produce sufficient factual support to establish the contrary.
Because the plaintiff s in this case failed to show, on motion for summary
judgment, that they would be able to bear their burden at trial to prove the alleged
tortfeasor, Deputy Tisdale, was an employee of the Buccaneers, summary judgment
in favor of the Buccaneers and its insurers should have been granted. See Bufkin v.
Felipe’s Louisiana, LLC, 14-0288 at p. 11, 171 So.3d at 859; Cheramie Services,
Inc. v. Shell Deepwater Production, Inc. , 09 -1633, pp. 9 -10 (La. 4/23/10), 35
So.3d 1053, 1059.
DECREE
Accordingly, we reverse the district court ruling and remand for entry of a
summary judgment in favor of defendants Buccaneers Limited Partnership, Ohio
Security Insurance Company, Liberty Mutual Insurance Company, and Nautilus
Insurance Company.
REVERSED; REMANDED WITH INSTRUCTIONS.