Jackie R. Gonzales v. Shelter Mutual Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-198 consolidated with 11-199

JACKIE R. GONZALES, ET AL.

VERSUS

SHELTER MUTUAL INSURANCE CO., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 232,822 C/W 232,632
HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Barry Ray Laiche
Patrick B. Sadler
Provosty, Sadler, deLaunay, Fiorenza & Sobel
237 S. Washington St.
Marksville, LA 71351
(318) 253-4435
Counsel for Plaintiffs/Appellants:
Jackie R. Gonzales
Ruby Gonzales

Steven D. Crews
Corkern, Crews, & Guillet, L.L.C.
P. O. Box 1036
Natchitoches, LA 71457-1036
(318) 352-2302
Counsel for Defendant/Appellee:
Travis Broadway

David A. Hughes
Hughes Law Firm, APLC
P. O. Box 1831
Alexandria, LA 71309-1831
(318) 443-4090
Counsel for Defendants/Appellees:
Shelter Mutual Insurance Co.
Rayburn Smith
Emily Smith
Jeremy Richerson
S&S Cattle Company, Inc.

John E. McAuliffe, Jr.
Attorney at Law
P. O. Box 5900
Metairie, LA 70009
(504) 840-4900
Counsel for Defendant/Appellee:
State Farm Fire & Casualty Co.

GREMILLION, Judge.

Jackie R. Gonzales and his wife, Ruby Gonzales, individually and on behalf

of their minor children, appeal the grant of summary judgment in favor of

defendant, Travis Broadway, dismissing their demands against Broadway. For the

reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Broadway raises cattle in Echo, Louisiana. He intended to sell some cattle

and, some date before December 10, 2007, contacted Jeremy Richerson, a solicitor

who arranges for the sale of cattle by Rayburn Lee Smith. Smith is a

representative of both Red River Livestock Auction in Armstead, Louisiana, and

Superior Livestock Auction of Fort Worth, Texas, and Brushy, Colorado. Smith

pays Richerson a commission on the cattle sold.

Richerson and his brother arrived at Broadway’s ranch and helped

Broadway take the cattle to Rush Farms, which Smith leased. Broadway left Rush

Farms once the cattle were delivered. Broadway paid Richerson for gathering and

loading the cattle at his ranch, and unloading the cattle at Rush Farms.

Once the cattle were unloaded at Rush Farms, they were sorted and tagged

by Richerson and his brother. The cattle were loaded onto a cattle trailer for

transport to the sale barn. As this was taking place, one calf fell and was trampled

by other cattle. Richerson and his brother thought the calf was dead and, to

facilitate the loading of the remaining cattle, dragged it outside the pen, up a chute,

and into an open yard.

The calf was not dead, however. At about 7:00 p.m., approximately two

hours after Broadway had left Rush Farms, it wandered through an open gate and

onto Louisiana Highway 1, where it was hit by a vehicle driven by Robert T.

Lamelle. Mr. Gonzales’s vehicle then struck the calf. The open gate was located

from between 300 yards to one-half mile from the highway.

The Gonzaleses filed suit against several defendants, including Broadway.

Broadway filed a motion for summary judgment. The Gonzaleses opposed the

motion, which the trial court granted. This appeal ensued.

ASSIGNMENTS OF ERROR

The Gonzaleses assert generally that there existed genuine issues of material

fact precluding summary judgment. Specifically, they point to three: 1) Broadway

should be held liable for his own negligence in failing to close the gate as he left

Rush Farms; 2) Richerson was acting in furtherance of Broadway’s enterprise as to

render Broadway vicariously liable for Richerson’s negligence; and, 3) Richerson

was an employee of Broadway.

ANALYSIS

The law of summary judgment is so ingrained as to require no recitation.

See La.Code Civ.P. arts. 966 and 967. Summary judgments are reviewed de novo

by courts of appeal. Louviere v. Ace Hardware Corp., 05-259 (La.App. 3 Cir.

11/2/05), 915 So.2d 999.

The Gonzaleses assert that Broadway is liable for his independent

negligence in violating Louisiana Revised Statute 3:2803(19), which prohibits the

owner from knowingly, willfully, or negligently permitting his livestock to go at

large upon Louisiana Highway 1 from its intersection with U.S. Highway 190

(near Erwinville) to Shreveport. The area of Highway 1 where the Gonzales

accident occurred is undisputedly within the proscribed area. The Louisiana

Supreme Court has held that when livestock are struck upon a “stock law” highway,

the owner is saddled with a presumption of negligence and must demonstrate not

only that he took all reasonable precautions, but also the he is free from fault by
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showing the means by which the animal escaped. See Hines v. Garrett, 04-806

(La. 6/25/04), 876 So.2d 764. This presumption of negligence precludes

application of the shifting burden of production found in Louisiana Code of Civil

Procedure article 966(c)(2).

Broadway has unequivocally demonstrated the means by which the animal

escaped. It was trampled by other cows as it was being unloaded. Richerson

thought it was dead and dragged it to the side. The animal revived and wandered a

considerable distance onto Highway 1. When Broadway left Rush Farms, the

cattle were inside an enclosure and were under the supervision of Richerson. Had

the calf not been trampled and removed from the enclosure, it would not have

wandered onto the highway. The only real question about Broadway’s

independent negligence is whether it was negligent for him to leave Rush Farms

without closing the main gate to the facility behind him.

When Broadway arrived at Rush Farms, the main gate was open. The farm

was leased by Smith. Smith’s deposition makes it clear that while ranchers like

Broadway would deliver their sale cattle to the farms, their control over the cattle

and, more importantly, the facilities ended at that point. Only Richerson had

permission from Smith to use the pens at Rush Farms. Smith also testified that the

gate was not intended to retain cattle, but to limit vehicle access to the farms. The

gate controls a road leading into the farms, and that road is lined on both sides by

fences. The last person to leave at the end of the day was to close and lock the gate.

Under these circumstances, we find that Broadway has demonstrated that he

was free from independent fault. When he left the cattle under Richerson’s control,

they were secured within an enclosure from which they could not escape under

normal circumstances. Only when this calf was removed from the enclosure—two

hours after Broadway left— did it gain access to the road. And the calf still had to
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wander a quarter to a half mile before it even reached the main gate to the farms.

Smith, as the proprietor of Rush Farms, controlled the main gate.

The remaining issues are the plaintiffs’ contentions that Broadway was

vicariously liable for Richerson’s actions either under an “enterprise liability”

theory or as Richerson’s master under Louisiana Civil Code article 2320. The

Gonzaleses cite Morgan v. ABC Manufacturer, 97-956 (La. 5/1/98), 710 So.2d

1077 as authority for liability under the enterprise theory. Specifically, the

Morgan decision quoted from Ermert v. Hartford Ins. Co., 559 So.2d 467, 476

(La.1990), the proposition that a “master’s vicarious liability for the acts of its

servant rests. . . in a deeply rooted sentiment that a business enterprise cannot

justly disclaim responsibility for accidents which may be fairly said to be

characteristic of its activities.” However, in Morgan, the supreme court was

establishing the context for determining whether a temporary service was

vicariously liable for the tort of a worker it had procured for its customer. The

temporary service’s stock in trade was providing employees for its customers.

Both the temporary service and its customers exercised “contemporaneous control”

over the employee; therefore, it was “reasonable that considering the overlapping

control and shared financial interest that they share liability.” Morgan, 710 So.2d

at 1083. Because the temporary service’s product was the labor it provided, it

should bear the risk associated with its product.

Rather than enunciating a novel theory for imposing vicarious liability,

Morgan presents an analytical framework for determining whether, in a master-

servant relationship, a particular activity was the kind for which liability should be

imposed. The fundamental basis for liability remains Civil Code article 2320. In

Ermert, for example, the issue was whether a corporation was vicariously liable for

its employee, who negligently discharged a shotgun inside a hunting camp. The
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supreme court did not draw upon enterprise liability analysis to determine whether

the negligent actor was a servant, but whether the recreational pursuit at the

hunting camp was the sort of activity for which the master could be held

responsible. In both Morgan and Emert, the existence of a master-servant

relationship was a given.

That is not the case here. We must begin our inquiry with a determination of

whether a genuine issue of material fact exists regarding the existence of a master-

servant relationship between Broadway and Richerson. In this inquiry, the shifting

burden of production previously discussed does come into play. See La.Code Civ.

P. art. 966(C)(2).

Broadway submitted an affidavit in which he attested that Richerson was not

his employee. Further, at the time of the accident, no employee or servant of his

was present at the site. Richerson testified in his deposition that he received a call

from Broadway, who wanted to sell some cows. Richerson brought two trucks and

trailers and at least six helpers to Broadway’s ranch. Broadway had three trucks

and trailers and three of his own hands. Broadway paid Richerson for the loading

and transport of the cattle to Rush Farms. Once the cattle were delivered to Rush

Farms, Richerson had earned his labor fee from Broadway and was working on his

sales commission. According to Richerson, Broadway’s involvement with the

process had ended.

While the supreme court in Ermert recognized that vicarious liability

between master and servant is seated in the notion that when the master reaps the

economic rewards of his servants’ labor, he should also expect to absorb the risk

that, in the course of that labor, his servants may cause harm, it also recognized

that this notion was not a governing principle of tort law. Id. at 476. Those

governing principles of tort law hold that a servant is one employed to perform
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services in the affairs of another and whose conduct in the performance of that

service is subject to the other’s right of control. Id., citing Blanchard v. Ogima,

253 La. 34, 215 So.2d 902 (1968). In fact, Blanchard provides an almost perfect

framework within which to analyze the present matter.

Ogima was a “bird-dog” car salesman, which meant that he essentially sold

cars on consignment. He retained all of the purchase price above an agreed

amount. He had taken possession of a Volkswagen from Russo. Ogima parked the

Volkswagen on an incline. The Volkswagen rolled downhill and crushed

Blanchard against another vehicle. Blanchard sued Ogima, Russo, and Russo’s

insurer. The trial court dismissed Russo and his insurer. The fourth circuit

affirmed the dismissal. The supreme court agreed to hear the case and affirmed.

The supreme court noted that the right to control another’s actions is

determinative of whether the one is the master of the other. The only control

Russo exercised over Ogima was fixing the amount of his compensation. Ogima

was neither a servant nor an independent contractor, but Russo’s agent. An agency

relationship does not form the basis for vicarious liability. All servants may

qualify as agents, but not all agents qualify as servants.

When Broadway entrusted the cattle to Richerson’s care, it was like Russo

handing over the keys of the Volkswagen to Ogima. His control over Richerson’s

actions ended. Richerson was not Broadway’s servant. No vicarious liability

attached to Richerson’s actions in sorting and tagging the cattle.

CONCLUSION

The Gonzaleses sued Broadway alleging both his independent negligence

and his vicarious liability for Richerson’s alleged negligence. Our de novo review

of the evidence supporting and opposing the motion for summary judgment

demonstrates no genuine issue for trial on either ground of fault. We find that
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Broadway took every reasonable precaution when he left Rush Farms with his

cattle in the care of Richerson inside a corral or pen located a quarter to a half mile

from Highway 1. He was free from any independent fault.

Richerson acted as Broadway’s agent from the moment he took custody of

the cattle at Rush Farms. Broadway’s control over Richerson’s actions ended at

that time.

The judgment of the trial court in favor of Travis Broadway is affirmed. All

costs of this appeal are taxed to appellants, Jackie R. Gonzales and Ruby Gonzales.

AFFIRMED.

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