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

Judgment rendered August 11, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,009-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

REGINALD MARTIN Plaintiff-Appellant

versus

RODNEY THOMAS, GREER Defendants-Appellees
LOGGING, LLC and NATIONAL
LIABILITY AND FIRE
INSURANCE COMPANY

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 599,802

Honorable Craig O. Marcotte, Judge

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SARTIN LAW FIRM, LLC Counsel for Appellant
By: J. Cole Sartin

CASTEN & PEARCE, APLC Counsel for Appellees
By: D. Brennan Hussey

*****

Before PITMAN, STONE, and THOMPSON, JJ.

PITMAN, J.

Plaintiff-Appellant Reginald Martin appeals the granting of a motion

for partial summary judgment filed by Defendants-Appellees, Rodney

Thomas, Greer Logging, LLC (“Greer Logging”), and National Liability and

Fire Insurance Company (“National”), which dismissed Plaintiff’s claims of

independent negligence against Greer Logging. For the following reasons,

we affirm the judgment of the trial court.

FACTS

On December 17, 2016, Plaintiff was driving his Honda Accord on

South Pardue Street in Vivian, Louisiana, when he was involved in an

accident with a logging truck driven by Thomas and owned by Greer

Logging. Thomas was an employee of Greer Logging, which is insured by

National. The accident occurred at 8:30 p.m., when the road was wet and it

was already dark. Thomas was backing the tractor trailer across South

Pardue Street in an attempt to park it in his driveway. He was driving the

tractor trailer to his home with the permission of his employer, Greer

Logging, although he was off work at the time of the accident and was not

carrying a load in the trailer.

Plaintiff sustained serious injuries in the accident, including multiple

broken ribs, a fractured sternum, an open fracture of the tibial plateau,

fracture of the left patella and open wounds of the left leg, knee and ankle.

In April 2017, he filed suit against Defendants, alleging general negligence

against Thomas as an employee of Greer Logging and imputing fault to

Greer Logging. Defendants answered and admitted that Thomas was Greer

Logging’s employee and was acting in the course and scope of his

employment at the time of the accident.

In July 2020, Plaintiff filed a motion to supplement and amend his

petition for damages by adding two paragraphs alleging Greer Logging’s

independent negligence. He claimed that this amendment related back to the

original petition filed in 2017.

The first paragraph alleged that Greer Logging was negligent 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 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 second paragraph in the amended petition alleged that:

Defendant GREER LOGGING, LLC owed a duty to formulate,
institute and implement hiring, supervision, training and
retention procedures which could have and should have
prevented the acts and omissions complained of herein above.
The scope of these duties encompassed the risk of the particular
harm sustained by Plaintiff. The breach of these duties by
GREER LOGGING, LLC caused Plaintiff’s harms, which
resulted in damages as set forth in the Original Petition for
Damages. This negligence was jointly a cause of Plaintiff’s
injuries and resulting damages.

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Because Defendants had already admitted in their answer to the

petition that Thomas was acting in the course and scope of his employment

and was driving the tractor trailer owned by Greer Logging, his employer, at

the time of the accident, they filed a motion for partial summary judgment

seeking dismissal of the claims against them as alleged in the amended

petition filed in 2020.

A hearing was held on October 5, 2020, and the trial court granted the

motion for partial summary judgment and dismissed with prejudice

Plaintiff’s claims alleged in the amended petition. The claims and causes of

action against Defendants from the original petition were reserved. The trial

court decreed the judgment to constitute a final judgment pursuant to La.

C.C.P. art. 1915(B) and certified it for immediate appeal.

Plaintiff filed this devolutive appeal seeking review of the granting of

the motion for partial summary judgment.

DISCUSSION

Plaintiff argues that the trial court erred in granting the motion for

partial summary judgment and dismissing his claims against Greer Logging

for its independent negligence because he has the right to present evidence

of the fault of all parties at trial. He cites La. C.C. art. 2323, which states

that the fault of “all persons” causing or contributing to the plaintiff’s loss

“shall” be determined. Plaintiff argues that it is mandatory that the

percentage of fault be determined of all persons contributing to an injury,

whether those persons are unidentified nonparties, statutorily immune

employers or others.

Plaintiff also argues that the law allows him to assert any cause of

action against these Defendants who have caused him harm, citing La. C.C.
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art. 2315(A). He asserts that Louisiana law recognizes negligent hiring,

supervision and training as “stand-alone” claims of negligence, separate and

apart from the theory of an employer’s vicarious liability.

Plaintiff further argues that Defendants have failed to provide a

“binding stipulation” of vicarious liability for the employee. He contends

that Defendants’ answer denied his allegations of the facts of the case and

indicated that his negligence would be a bar to his recovery if he is found to

be 25 percent or more at fault in the accident. For these reasons, Plaintiff

argues that he is entitled to pursue any claims of fault against Greer

Logging.

Plaintiff asserts that public policy would be furthered by allowing the

jury’s assessment of Greer Logging’s independent fault. The purpose of tort

law includes deterrence of undesirable conduct and to make the victim

whole; and if Plaintiff is allowed to assert independent causes of action

against Greer Logging, future wrongdoing by employers with regard to

negligent hiring would be curtailed.

Defendants assert that the trial court correctly granted the motion for

partial summary judgment and dismissed the individual claims against Greer

Logging while maintaining the remainder of Plaintiff’s suit against them.

They argue that an employer is answerable for the damage occasioned by its

employee in the exercise of the functions in which the worker is employed.

An employer’s vicarious liability extends only to the employee’s tortious

conduct that is within the course and scope of that employment.

Defendants also argue that they admitted in their answer that Thomas

was in the course and scope of his employment with Greer Logging at the

time of the accident, and the answer to the petition in which this fact is
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admitted constitutes a judicial confession under La. C.C. art. 1853.

Defendants contend that their answers, while denying liability for the

accident, have the effect of dispensing with any evidence pertaining to

course and scope issues and result in the withdrawal of any dispute

regarding Greer Logging’s vicarious liability for the remainder of the case.

Defendants further argue that as a result of this judicial confession,

there is no disputed issue of material fact that at the time of the accident,

Thomas was Greer Logging’s employee; and his fault, if found, will be

attributable to Greer Logging. They also point out that as a result of this

judicial confession, Plaintiff will not have to prove any independent liability

of Greer Logging because it will already be deemed vicariously liable if

Plaintiff proves his damages were Thomas’s fault. They contend that

Plaintiff cannot simultaneously maintain a claim for vicarious liability and

an independent claim for damages since a direct negligence claim against an

employer is subsumed in a direct negligence claim against an employee

when the course and scope are admitted. The rationale is that if Thomas is

found to be at fault, Greer Logging will be vicariously liable for his

negligence; however, if Thomas is not found to be at fault, then Greer

Logging cannot be found to be at fault because he was working for them and

they have no liability to Plaintiff for any of the alleged acts of independent

negligence.

Motion for Partial Summary Judgment

A motion for summary judgment is a procedural device used when

there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Saldana v. Larue Trucking, LLC, 52,589 (La. App. 2 Cir.

4/10/19), 268 So. 3d 430, writ denied, 19-00994 (La. 10/1/19), 280 So. 3d
5

159, citing Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002. The

procedure is favored and shall be construed to secure the just, speedy and

inexpensive determination of actions. La. C.C.P. art. 966(A)(2). An

appellate court reviews a trial court’s granting of summary judgment de

novo under the same criteria that govern the trial court’s consideration of

whether summary judgment is appropriate, i.e., whether there is any genuine

issue of material fact and whether the movant is entitled to judgment as a

matter of law. McDonald v. PNK (Bossier City), LLC, 53,561 (La. App.

2 Cir. 9/23/20), 304 So. 3d 143, writ denied, 20-01416 (La. 2/9/21),

310 So. 3d 179.

La. C.C.P. art. 966(D)(1) states:

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. 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.

The issue presented in this case is one of law, not fact, and is whether

Plaintiff can assert allegations of individual negligence against Greer

Logging once it has admitted that its employee was in the course and scope

of its employment at the time of the accident. Greer Logging would not

have the burden of proof at trial on the issue before the court on the motion

for partial summary judgment; therefore, it only has to point out to the court

the absence of factual support for one or more elements essential to the

adverse party’s claim or action.

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Defendants’ Answer as Judicial Confession

Plaintiff has argued that Defendants failed to stipulate to their

vicarious liability for the employee, Thomas. Paragraph 19 of the original

petition alleges both his employee status and that he was in the course and

scope of his employment at the time of the accident. Defendants’ answer to

Paragraph 19 admits those allegations. Plaintiff also argued that in the

answer to the amended petition, Defendants denied the allegations of

independent fault and also asserted defenses to the action, including

asserting that Plaintiff may have been intoxicated at the time of the accident.

A judicial confession is a declaration made by a party in a judicial

proceeding. La. C.C. art. 1853. That confession constitutes full proof

against the party who made it. A judicial admission or confession is a

party’s express acknowledgment of the correctness of the fact or the act

charged against him by his adversary. Collins v. Hill, 52,457 (La. App.

2 Cir. 2/27/19), 265 So. 3d 1202. Such a confession is designed to dispense

with evidence and has the effect of withdrawing the subject matter of the

confession from issue. Id. A declaration made by a party’s attorney or

mandatary has the same effect as one made by the party himself. Id.

An admission by a party in a pleading also constitutes a judicial

confession and is full proof against the party making it. C.T. Traina Inc. v.

Sunshine Plaza, Inc., 03-1003 (La. 12/3/03), 861 So. 2d 156; Coleman v.

Querbes Co. No. 1, 51,159 (La. App. 2 Cir. 2/15/17), 218 So. 3d 665.

Defendants’ answer constitutes a judicial admission of Thomas’s

status as Greer Logging’s employee and an admission that he was in the

course and scope of his employment, thus making Greer Logging vicariously

liable for his fault in the accident.
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Simultaneous Actions for Vicarious Liability
and Individual Employer Liability

Although the issue in this case has not previously been addressed by

this court, it has been addressed by other circuit courts in Louisiana when

raised by appellants through other procedural devices.

In Libersat v. J & K Trucking, Inc., 00-00192 (La. App. 3 Cir.

10/11/00), 772 So. 2d 173, writ denied, 01-0458 (La. 4/12/01), 789 So. 2d

598, appellants argued that the trial court erred in failing to instruct the jury

regarding the employer’s duty in hiring and training the employee driver.

The appellants alleged that the employer was negligent because it placed the

employee on the road without the proper training and skill to discharge the

duty owed by a professional truck driver. They asserted that the trial court

refused to use their instructions because the trial court equated respondeat

superior to all possible theories of recovery. The court found that the trial

court’s instructions regarding the employer’s possible liability were an

accurate reflection of the law. As the employer, it would be liable for the

employee’s actions under the theory of respondeat superior. If the

employee breached a duty to the appellants, then the employer would be

liable under the theory of respondeat superior. If the employee did not

breach a duty to the appellants, then no degree of negligence on the part of

the employer in hiring would make the employer liable to the appellants.

In Landry v. Nat’l Union Fire Ins. Co. of Pittsburg, 19-337 (La. App.

5 Cir. 12/30/19), 289 So. 3d 177, 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 appellant contended that the trial court erred in concluding that she

could not maintain causes of action against the employer for negligent

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hiring, training, supervision and entrustment and claimed that under La. C.C.

art. 2323, the jury should consider the fault of all parties, including the

employer. The court determined that because the employer had stipulated

that the employee was in the course and scope of his employment at the time

of the accident, the allegations of individual liability against the employer

were properly dismissed when the motion for partial summary judgment was

granted.

In Elee v. White, 19-1633 (La. App. 1 Cir. 7/24/20), __So. 3d __, writ

denied, 20-01048 (La. 11/10/20), 303 So. 3d 1038, the trial court granted a

motion for partial summary judgment and dismissed the plaintiff’s claims of

individual liability of the employer. The plaintiff filed an appeal from the

judgment, but because the trial court had not certified the judgment as a final

and appealable judgment, the court of appeal converted the appeal to a writ

application. It found that the summary dismissal of Elee’s direct negligence

claim would not impinge on the fact finder’s role to determine facts and

assess fault. The court opined that Elee’s direct negligence claim against the

employer was essentially subsumed in the direct negligence claim against

the employee, and an employee driver’s negligence may include his

employer’s negligence for lapses in hiring, training and supervision. Thus,

the writ was denied and the judgment was affirmed.

Greer Logging has judicially admitted that Thomas was its employee

and was in the course and scope of his employment when the accident

occurred. If Thomas is found to be negligent and at fault in the accident,

Greer Logging’s alleged negligence in Thomas’s hiring, training and

supervision will be subsumed by Thomas’s negligence and fault, and the

employer will be held vicariously liable for the employee’s fault. Contrarily,
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should Thomas not be found negligent and at fault in the accident, then no

amount of negligence on Greer Logging’s part for those acts could be the

cause-in-fact or legal cause of the accident that occurred.

For the foregoing reasons, this assignment of error is without merit.

CONCLUSION

After a de novo review of the record and for the foregoing reasons, we

affirm the trial court’s judgment granting the motion for partial summary

judgment and dismissing Plaintiff-Appellant Reginald Martin’s claims of

independent negligence and fault of Defendant-Appellee Greer Logging,

LLC, found in the amended petition. Greer Logging, LLC, remains

vicariously liable for the fault of its employee, Rodney Thomas, if any is

found. Costs of appeal are assessed to Plaintiff-Appellant Reginald Martin.

AFFIRMED.

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