Derek Lemaire v. David Richard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-581

DEREK LEMAIRE

VERSUS

DAVID RICHARD, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20091231
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

REVERSED AND REMANDED.

Gregory Kent Moroux
Onebane Law Firm
P. O. Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
COUNSEL FOR DEFENDANTS/APPELLEES:
Dave’s Gun Shop
David Richard
Linda Richard

James Kirk Piccione
Piccione & Piccione
P. O. Box 3029
Lafayette, LA 70502
(337) 233-9030
COUNSEL FOR DEFENDANT/APPELLEE:
Jeremiah Deare

Charles William Ziegler IV
Attorney at Law
P. O. Box 53513
Lafayette, LA 70505-3513
(337) 234-1100
COUNSEL FOR PLAINTIFF/APPELLANT:
Derek Lemaire

SAUNDERS, Judge.

This is a vicarious liability case in which a gun shop manager accidentally

discharged his own gun, shooting a customer. The manager‟s gun discharged as he

was disassembling it in order to compare it to the customer‟s malfunctioning gun,

as they were both Glock 19 pistols. The customer sustained a gunshot wound on

the right side of his chest, and he filed suit against the manager, the gun shop

owner, and the lessor of the property for damages arising from this injury. The

lessor was dismissed from the suit, and the manager reached a settlement. After a

bench trial on the issue of the shop‟s liability, the trial court ruled in favor of the

shop, finding no vicarious liability. The plaintiff appeals. For the reasons

discussed herein, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Derek Lemaire (hereinafter “Lemaire”), purchased a gun from

defendants, Dave Richard and Linda Richard d/b/a Dave‟s Gun Shop (hereinafter

“the shop”). Shortly thereafter, the gun jammed. Lemaire contacted the manager

of Dave‟s Gun Shop, Jeremiah Deare (hereinafter “Deare”) on November 10, 2008,

regarding the problem. Deare invited him to bring the gun to the shop for

inspection. Deare testified that “we said bring it by. We can take a look at it and

see if there‟s anything---I mean, you can look at something, „Oh, yes. That piece is

broken.‟ If there was nothing obvious about it, we don‟t do repairs so we would

send it back to the factory for him.”

Lemaire arrived at the shop sometime around 7:00 p.m. that evening.

Although each parking space in the lot is available to customers of any store in the

shopping center, Lemaire parked his truck directly in front of the gun shop. The

shop‟s hours are 9:00 a.m. to 6:00 p.m. The parties disputed the frequency with

which the shop stays open after hours, but there is no dispute that the door was

unlocked at the time Lemaire arrived. Another customer was present in the shop,

talking to Deare. Dave Richard, the shop‟s owner (hereinafter “Richard”), was

present as well, working on inventory. Lemaire waited for Deare to finish with the

other customer before discussing his gun.

After that, Deare‟s testimony conflicts with that of Lemaire. Lemaire

testified that he did not initially bring the gun into the shop because “I never bring

a loaded weapon into a shop until I tell someone. There‟s no sign on the door to

say, „Leave your gun unloaded,‟ like some gun shops, but just to be safe.” He

testified that as he was leaving the shop to retrieve his gun from his truck and bring

it back to the shop, Deare followed him out to the parking lot to assist him, at

which point the incident occurred.

In contrast, Deare testified that Lemaire retrieved the gun from his truck and

brought it back inside the store, at which point “[w]e ran through a couple of

possibilities of what it was. We offered to send it back. That offer was refused. If

I remember correctly, it was, „I‟ll keep shooting and see if it fixes itself.‟” Deare

later testified that they disassembled the gun in the shop but were not able to

determine why it was malfunctioning. Deare testified that at that point, Lemaire

left the shop with the gun, having refused to send the gun back to Glock, its

manufacturer. Deare testified that he left as well, locking up the shop for the night

and walking out to the parking lot, where the incident then occurred.

A police report by investigating detective Glenn Landry states that after

being Mirandized, Deare told the detective that he walked outside to the parking

lot, where he saw Lemaire, who then began discussing the jamming problem. The

report states that this conversation led to disassembling Deare‟s gun and thus the

shooting incident in the parking lot. Nowhere does the report mention Lemaire

ever entering the shop that night.
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Richard testified that he did not speak to Lemaire that night, although he saw

Lemaire enter the shop and then leave with Deare. There is also conflicting

testimony as to whether Deare locked the door on his way out to the parking lot.

Richard testified that he saw Deare lock the door on his way out and believed he

was leaving for the night. Deare‟s testimony is similar. Lemaire testified that

Deare did not lock the door when he followed Lemaire outside because they

intended to return to the shop.

Two police officers who were the first to arrive on the scene testified at trial

that the lights were on in Dave‟s Gun Shop. One of them, Sergeant Paul Matte,

testified that the shop door was not locked:

Q: When you went into Dave‟s, did Dave come out before you went into
Dave‟s Gun Shop?

A: No, sir.

Q: When you went into Dave‟ Gun Shop, was the door locked?

A: No, sir.

Q: So you went in and met Dave inside?

A: Yes, sir.

Deare testified that he did not unlock the shop door after the shooting.

Richard testified that he was not aware of the incident until police arrived and he

saw flashing lights outside, at which point he unlocked the door to exit the shop

and see what was going on.

Deare testified that in going outside with Lemaire he intended to say

goodbye to Lemaire and leave for the day; then once outside, it occurred to him

that he could compare Lemaire‟s gun to his own. Lemaire testified that Deare was

accompanying him to retrieve the gun out of customer courtesy.

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Deare and Lemaire then met at Lemaire‟s truck, which was still parked

outside the shop. Deare told Lemaire he was going to take a look at his own gun to

compare it to Lemaire‟s, or to remove the slide from his own gun and test it in

Lemaire‟s. Lemaire heard Deare remove his own gun from its holster. Lemaire

began packing his gun into its case in the back seat of his truck. Lemaire testified

that Deare never touched the gun Lemaire brought in; Deare touched only his own

gun. Deare testified, rather, that “I took his apart and we put his back together, and

it was in the truck,” clarifying later that he disassembled Lemaire‟s gun on the

passenger side front seat of Lemaire‟s truck. Deare testified that he saw no parts

broken and did not see an obvious cause of malfunction in Lemaire‟s gun. Deare

testified at his deposition that he then wanted to look at his own gun to compare it

to Lemaire‟s in order to identify a source of malfunction “to warrant sending it

back to Glock.” As Deare was disassembling his own gun, which requires pulling

the trigger, Lemaire came around either the corner of his truck or around its open

back door (Deare testified the former, Lemaire the latter). As he did, Deare‟s gun

accidentally discharged, shooting Lemaire in the chest. Deare agrees that he shot

Lemaire.

Deare testified that he was comparing the two guns “as a friend.” Lemaire

testified that he was Deare‟s friend “at the gun shop for sales purposes and stuff,”

and that they spent time together outside the gun shop once, eating at a restaurant

with an additional friend. Lemaire stated that his entire conversation with Deare

on November 10, 2008, was about the problems with his gun.

Deare also testified that the shop normally covers shipping fees to send a

gun it has sold back to Glock for inspection or repair, and that Glock then covers

repair costs for its products. Deare testified that his duties included sales, taking

care of the other employees, and “mak[ing] sure things got done and things were
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done in a timely fashion.” Deare also took phone calls, which Richard cannot do

because he is deaf. Deare testified that he does not have a federal firearms license

that authorizes parties to purchase and resell guns, but that the shop was licensed:

“In order to become a gun shop and sell this as ATF spec, you have to have a

federal firearms license. That‟s like a person who works for Academy. The

eighteen-year-old kid that works behind the counter doesn‟t possess one. He sells

guns for Academy. I sell guns for Dave‟s Gun Shop.” Richard confirmed that

Deare is the manager of the shop and is an hourly employee.

Lemaire filed suit against Deare and against the shop for damages, alleging

that the shop was vicariously liable for Deare‟s tortious act. Lemaire also filed suit

against the owner of the shopping center in which the shop is located. The

shopping center owner filed a motion for summary judgment, which was granted.

Deare reached a settlement with Lemaire and was dismissed as well.

Lemaire filed a motion for summary judgment on the issue of the shop‟s

vicarious liability. The shop opposed the motion and filed a cross motion for

summary judgment, arguing the shop was not vicariously liable. The trial court

denied both motions after a hearing. Lemaire filed a second motion for summary

judgment. The trial court granted the store‟s motion to strike, finding Lemaire‟s

second motion for summary judgment was moot.

At a bench trial on the issue of the shop‟s liability, the trial court ruled in

favor of the shop. To determine whether the shop was vicariously liable for

Deare‟s action, the trial court applied the four-factor test set forth in LeBrane v.

Lewis, 292 So.2d 216 (La.1974), and summarized in Edmond v. Pathfinder Energy

Services, Inc., 11-151 (La.App. 3 Cir. 9/21/11), 73 So.3d 424, writ denied, 11-2234

(La. 12/16/11), 76 So.3d 1204. These factors are: (1) whether the tortious act was

primarily employment rooted; (2) whether the act was reasonably incidental to the
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performance of the employee‟s duties; (3) whether the act occurred on the

employer‟s premises; and (4) whether the act occurred during the hours of

employment. Id.

As to the first factor, whether the tortious act was primarily employment

rooted, the trial court stated in its oral reasons for judgment: “I frankly, am not

really sure what the tortious act was primarily rooted in.” The court explained this

was in part because it found the testimony of both Lemaire and Deare to be less

than completely credible. However, the court further opined, “I think that the

tortious act was primarily employment rooted. We do have that factor because I

don‟t think it would have happened if [Deare] did not work at Dave‟s Gun Shop.”

As to the second factor, whether the act was reasonably incidental to the

performance of the employee‟s duties, the trial court opined that, because repairs

were not part of Deare‟s duties, and he was actually forbidden from attempting a

repair, this factor was not met. Furthermore, the trial court believed that Deare and

Lemaire, knowing that Richard had forbidden employees from inspecting weapons

pursuant to the shop‟s “no repairs” policy, decided to instead inspect the weapon in

the parking lot, where Richard would not see them. In stepping out of the store

into the parking lot in order to perform an action he was not to perform under his

duties as an employee, Deare left his role as an employee of the shop and entered

his role as Lemaire‟s friend, helping him with his gun, the trial court surmised.

Deare‟s act of shooting Lemaire “was not reasonably incidental to his duties

because his duties had nothing to do with repairing or inspecting weapons,” the

court stated.

As to the third factor, whether the act occurred on the employer‟s premises,

the trial court found that the parking lot was not part of the shop‟s premises: “I

cannot find any evidence whatsoever from the testimony or from the lease itself
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that the premises of Dave‟s Gun Shop included any part of the parking lot.” The

trial court relied on the fact that the parking area is common to all of the businesses

in the shopping center in which the shop is located. The court further stated, “If

this had occurred inside the shop and Dave Richard could have done nothing to

stop it, he still may not be liable for it because it wasn‟t part of his duties.”

As to the fourth factor, whether the act occurred during the hours of

employment, the court found that “the store was open for business at the time, at

least to Mr. Lemaire.” The court opined that whether the shop‟s door was locked

or unlocked did not make a difference.

The trial court recognized that no one factor is dispositive, but weighed the

first two factors more heavily: “What is important is whether or not the employee‟s

duties were reasonably incidental to the act and whether or not his tortious act was

primarily employment rooted.”

The trial court concluded, “I think that this was something [Deare] did on his

own.” The trial court‟s final judgment dismissing all claims against the shop was

signed and served. Lemaire now appeals the judgment.

ASSIGNMENTS OF ERROR

1. The trial court erred in concluding the shooting was not on the

“premises.”

2. The trial court erred in concluding the shooting was not incidental to the

job duties of the manager of Dave‟s Gun Shop, who knew Lemaire was

returning with a gun he had recently purchased from Dave‟s Gun Shop

because it was malfunctioning.

3. The trial court erred in requesting and persuading the issue of “course

and scope” be bifurcated.

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4. The trial court erred in not finding that the employer was vicariously

liable for the acts of his employee.

5. The trial court erred in not finding that the employer was vicariously

liable for the acts of his employee under the doctrine of respondeat

superior, for among other things, requiring that Deare carry a loaded

weapon in the parking lot of Dave‟s Gun Shop.

6. The trial court erred in not finding Dave Richard d/b/a Dave‟s Gun Shop

liable for the actions of his employee in the parking lot.

LAW AND ANALYSIS

A trial court‟s determination that an act is or is not “within the course and

scope of employment for purposes of vicarious liability is a factual finding

governed by the manifest error rule.” Baumeister v. Plunkett, 95-2270, p. 7 (La.

5/21/96), 673 So.2d 994, 998; see also Ermert v. Hartford Ins. Co., 559 So.2d 467

(La.1990) (finding course and scope to be a mixed question of law and fact held to

the manifest error standard).

A court of appeal may not set aside a trial court‟s finding of fact in the

absence of „“manifest error‟ or unless it is „clearly wrong.‟” Rosell v. ESCO, 549

So.2d 840, 844 (La.1989). Under the manifest error-clearly wrong standard, this

court employs a two-part test for the reversal of a factfinder‟s determinations.

Stobart v. State Through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). First,

this court “must find from the record that a reasonable factual basis does not exist

for the finding of the trial court.” Id. at 882. Second, this court must “determine

that the record establishes that the finding is clearly wrong (manifestly

erroneous).” Id. This test requires this court to review the record in its entirety to

determine manifest error. Id. This court‟s determination is not whether the

factfinder was correct, but whether the factfinder‟s conclusion was reasonable. Id.
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The supreme court further stated in Stobart:

Even though an appellate court may feel its own evaluations and
inferences are more reasonable than the factfinder‟s, reasonable
evaluations of credibility and reasonable inferences of fact should not
be disturbed upon review where conflict exists in the testimony.
Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue,
365 So.2d 1330 (La.1978). However, where documents or objective
evidence so contradict the witness‟s story, or the story itself is so
internally inconsistent or implausible on its face, that a reasonable
factfinder would not credit the witness‟s story, the court of appeal
may find manifest error or clear wrongness even in a finding
purportedly based upon a credibility determination. Rosell, 549 So.2d
at 844-45.

Id. at 882.

Lemaire bears the burden to prove that the shop should be held vicariously

liable for Deare‟s tortious act under La.Civ.Code art. 2320, which states, “Masters

and employers are answerable for the damage occasioned by their servants and

overseers, in the exercise of the functions in which they are employed. . . .

[R]esponsibility only attaches, when the masters or employers . . . might have

prevented the act which caused the damage, and have not done it.”

As discussed above, the trial court considers the LeBrane factors to

determine whether vicariously liability should be imposed: “(1) whether the

tortious act was primarily employment rooted; (2) whether the 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.” Edmond, 73 So.3d at 426. All four of these factors need not be

met in each case to impose vicarious liability, but each factor must be weighed on

a case-by-case basis. Id.

Put another way, an act is in the course and scope of one‟s employment if it

“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

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serve the employer.” Orgeron on Behalf of Orgeron v. McDonald, 93-1353, p. 4

(La. 7/5/94), 639 So.2d 224, 226-27. If the employee‟s act is “motived by purely

personal considerations entirely extraneous to the employer‟s interests,” then

vicarious liability shall not be imposed. Richard v. Hall, 03-1488, p. 6 (La.

4/23/04), 874 So.2d 131, 138. In Ermert v. Hartford Ins. Co., 559 So.2d 467, 477

(La.1990), the supreme court stated:

The fact that the predominant motive of the servant is to benefit
himself or a third person does not prevent the act from being within
the scope of employment. Miller v. Keating, 349 So.2d 265, 269
(La.1977); Restatement (2d) of Agency § 236; cf. 1 W. Malone & A.
Johnson, supra, § 161, at 309. If the purpose of serving the master‟s
business actuates the servant to any appreciable extent, the master is
subject to liability if the act is otherwise within the service. Austen v.
Sherwood, supra; Miller v. Keating, supra; Gilborges v. Wallace, 78
N.J. 342, 396 A.2d 338 (1978); Best Steel Bldgs. v. Hardin, 553
S.W.2d 122 (Tex.Civ.App.1977).

A factfinder must consider the nature of the employer‟s business at issue in

determining whether an act is within the course and scope of one‟s employment.

Vicarious liability “rests not so much on policy grounds consistent with the

governing principles of tort law as in a deeply rooted sentiment that a business

enterprise cannot justly disclaim responsibility for accidents which may fairly be

said to be characteristic of its activities.” Ermert, 559 So.2d at 476. “In

determining whether a particular accident may be associated with the employer‟s

business enterprise, the court must essentially decide whether the particular

accident is a part of the more or less inevitable toll of a lawful enterprise.” Richard,

874 So.2d at 137-38.

Furthermore, “[t]he 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. at 138. However, “the fact that an act is forbidden or is

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

employment.” Ermert, 559 So.2d at 479 (citations omitted).

In light of the guidance outlined above as applied to the facts of this case set

forth in the record, we find that the trial court manifestly erred in finding that

Deare‟s act was not reasonably incidental to the performance of the employee‟s

duties and manifestly erred in finding that the act did not occur on the employer‟s

premises.

The trial court found that the tortious act was primarily employment rooted,

and thus the first LeBrane factor weighed in favor of vicarious liability. We agree.

As the trial court stated, the shooting incident would not have occurred had Deare

not been present as an employee at the shop. Because this case is a result of

working with guns at a gun shop, the circumstances surrounding the incident are

clearly “attributable to the employer‟s business,” and thus the incident was

employment rooted. Lebrane, 292 So.2d at 218; see also Edmond, 73 So.3d 424.

The trial court found that the second LeBrane factor---whether the act was

reasonably incidental to the performance of the employee‟s duties---did not weigh

in favor of vicarious liability. In reaching its verdict, the trial court relied heavily

on its conclusion regarding this factor. The trial court found that the shooting

incident was not incidental to Deare‟s duties because the shop forbid Deare from

the type of act he was performing when the incident occurred---inspecting a

weapon. Deare‟s act of shooting Lemaire “was not reasonably incidental to his

duties because his duties had nothing to do with repairing or inspecting weapons,”

the trial court stated. This court notes that there is a distinction between repairing

and inspecting a gun, and Deare was not attempting a repair when the shooting

incident occurred. In fact, he was not even working on Lemaire‟s gun; rather, he

was disassembling his own gun in order to diagnose the problem with Lemaire‟s
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gun. Deare testified that he told Lemaire over the phone that he would attempt to

diagnose the problem. This act is therefore clearly within the scope of the work he

does at the shop.

In addition, Deare testified that his employment duties include customer

service. Testimony by Deare, Lemaire, and Richard all show that Lemaire was a

valued, regular customer who had purchased four or five guns from the shop.

Importantly, he had purchased the gun at issue from the shop. Also, Deare testified

that the shop would pay shipping costs to send the gun back to Glock. It is

unreasonable to believe that any act that would prevent this expense for the shop

could not be incidental to the duties of the shop‟s manager.

A factfinder must also consider the nature of the business when determining

course and scope. Disassembling a gun in order to compare it to similar

merchandise and determine the source of malfunction is clearly of the character

and nature of the business at which Deare was employed. Deare was motivated at

least in part to help Lemaire because he was a customer of the shop that he

managed, which sold Lemaire the malfunctioning gun. The accidental discharge of

a weapon during disassembly is characteristic of the activities of a shop which sells

guns, regardless of whether the shop repairs guns or employs a gunsmith. Liability

for an accident of this kind is an inevitable toll of this type of business, and the

shop is subject to vicarious liability for this incident. No other conclusion is

reasonable under the facts contained in the record.

In addition, a factfinder must consider the degree of authority given to the

employee. Here, the record shows that Lemaire was given a degree of authority in

his position as manager that broadened the scope of risks attributable to his acts on

behalf of the shop. Richard testified that he saw Lemaire in the shop that night and

was aware his gun was having issues. However, no party testified that Richard
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interacted with or assisted Lemaire that night. Instead, Richard granted Deare the

authority to address Lemaire‟s problem, and in doing so, assumed responsibility

for tortious conduct on Deare‟s part as he acted with such authority. This is the

very definition of the doctrine of respondeat superior.

Finally, we note that it is well-established that even when a precise act is

forbidden, if the act is sufficiently connected to an employee‟s work, it may still be

reasonably incidental to the performance of an employee‟s duties. For example, in

LeBrane, 292 So.2d 216, the supreme court found that a fight that erupted between

an employee and the sub-employee he had just fired was reasonably incidental to

the performance of the employee‟s duties, which included hiring and firing sub-

employees. There, the act of fighting during which the tort (a stabbing) occurred

was clearly forbidden. However, it arose as a result of an employment duty. In the

instant case, the forbidden act of disassembling the gun arose out of Deare‟s

employment duty of assisting a customer to determine the best course of action for

a malfunctioning gun. The trial court‟s reasoning is clearly at odds with this well-

established aspect of vicarious liability. Accordingly, the trial court‟s conclusion

that an employee of the shop disassembling a Glock of the same caliber in order to

determine why the shop‟s own merchandise was malfunctioning for a valued

customer is not incidental to his employment duties is clearly wrong and

manifestly erroneous.

The trial court found that the third LeBrane factor---whether the act occurred

on the employer‟s premises---did not weigh in favor of vicarious liability. This

court finds that the trial court manifestly erred in finding that the incident at issue

did not occur on the shop‟s premises.

In Davis v. Green, 44,033 (La.App. 2 Cir. 2/25/09), 5 So.3d 291, writ denied,

09-984 (La. 6/19/09), 10 So.3d 742, the court found that an employer‟s parking lot
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could be considered the premises. In that case, an off-duty Wal-Mart associate was

involved in a car accident in the Wal-Mart parking lot. Although the court

ultimately concluded the employer was not vicariously liable for the associate‟s

tort, it noted that an incident occurring in the employer‟s parking lot could satisfy

the “place element” of the LeBrane test. The court based its result heavily on the

fact that the employee was traveling in her car, easily distinguishable from the

facts of the instant case, where the car was parked.

In Harris v. Sears, Roebuck & Co., 485 So.2d 965, 968 (La.App. 5 Cir.) writ

denied, 488 So.2d 205 (La.1986), the court found that the circumstances

effectively extended the employer‟s premises to the road a block from the

employer‟s building, for the similar purpose of worker‟s compensation coverage.

The facts in Harris state that the warehouse at which plaintiff‟s decedent was

employed flooded during a heavy rain storm. The decedent left work because of

the flood, and when he was in his car about a block from the warehouse, his car

was swept away by water. Two other employees attempted to rescue him, but their

efforts were unsuccessful and he drowned. The court found this incident to be

covered by worker‟s compensation. In analyzing the “place” component, the court

found that the employees who attempted to rescue him were still “working” for

Sears, and “by literally going beyond the Sears premises to help others, constituted

an extension of those premises. Therefore, it can be said that decedent died „on

Sears premises.‟” Id. at 968. The court further reasoned, “While [decedent] had

managed safely to exit Sears‟ parking lot, he clearly had not yet escaped the

hazard that had presented itself at his workplace and prompted his departure.” Id.

at 969-70.

In the instant case, Deare and Lemaire were mere feet from the shop‟s door

when the incident occurred. Both men were present in connection with the gun
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shop. As the trial court noted, the parking lot is shared between several shops,

with no parking spots devoted solely to any one shop. Their activities in the

parking lot were an extension of their continuing endeavor to determine why the

gun was malfunctioning. In fact, the act that took place in the parking lot,

attempting to determine the problem with the malfunctioning gun, was scheduled

and planned over the phone when Lemaire called Deare at the shop. This marked

the beginning of a dialogue that continued between the men once both were present

in the shop itself, then continued into the parking lot. This continuing dialogue, all

on the subject of the malfunctioning gun, renders the parking lot an extension of

the premises for our purposes. As in Harris, the course of events that culminated

in the incident at issue began on the undisputed premises of the employer---here,

the shop. As in Davis, the parking lot is next to the shop and is maintained for the

convenience of the business and its customers. Even though the lot is not

technically the shop‟s premises for purposes of its lease, one would reasonably

anticipate activities in connection with the shop to take place there, including

employees walking customers out to their cars and continuing to discuss shop-

related matters. We conclude that the act occurred on the employer‟s premises.

The trial court found that the fourth LeBrane factor---whether the act

occurred during the hours of employment---weighed in favor of vicarious liability.

We agree. As the trial court stated, it is clear that the shop was open to Lemaire.

The undisputed facts show that Lemaire entered the shop easily, another customer

was present when he entered, the lights were on, and Deare freely discussed the

business of the gun with Lemaire, who was clearly in the role of a customer at the

time. Therefore, the act occurred during the hours of employment.

The first and second LeBrane factors are the dominant considerations under

these facts and, as noted, we find both weigh in favor of Lemaire. The third factor-
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--whether the act occurred on the premises---is a close issue in this case, and is

therefore of marginal value in our overall decision. While we find the trial court

committed manifest error in finding the parking lot was not part of the shop‟s

premises, this finding is not determinative. Even if the parking lot were outside the

shop‟s premises, the other factors of this case point so strongly toward vicarious

liability that our result would be the same. Finally, the fourth factor clearly weighs

in favor of Lemaire and further supports vicarious liability. Given that no

reasonable factfinder could find that the LeBrane factors, considered together, do

not mandate vicarious liability, we find that Deare was in the course and scope of

his employment as manager of the shop when he accidentally shot Lemaire.

Therefore, the shop is vicariously liable for this act.

The trial court did not err in bifurcating the issues of liability and damages.

There is no evidence that bifurcation prejudiced the plaintiff or that the trial court

had prejudged the case. The plaintiff requests that this court reach a decision on

the issue of damages in order to put the matter to rest. It is not within the authority

of this court to do so. The record is not sufficiently developed for this court to

reach a decision as to damages, and the shop must be given the opportunity to

assert defenses and cross examine witnesses as to the issue of damages. An award

of damages by this court would constitute the exercise of original jurisdiction with

which this court is not vested. See La. Const. art. V, § 10. Lemaire‟s additional

assignments of error are resolved by the findings herein.

CONCLUSION

In conclusion, for the reasons herein, we reverse the trial court‟s decision

and remand this case for further proceedings consistent with this opinion. All costs

of this appeal are assessed to Appellees, Dave Richard and Linda Richard d/b/a

Dave‟s Gun Shop.
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REVERSED AND REMANDED.

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