The Lawletter Vol 47 No 4
Can a plaintiff pursue claims of direct negligence against an employer when the employer admits that its employee was acting within the scope of employment at the time a tort occurs? The Louisiana Supreme Court addressed this issue of first impression in Martin v. Thomas, 2021-01490 (La. 6/1/22); 346 So. 3d 238. In the Martin case, the plaintiff (Reginald Martin) alleged that a truck driver (Rodney Thomas) caused an accident while operating a tractor truck owned by his employer (Greer Logging, LLC). After the employer admitted that its driver was acting within the scope of his employment, the plaintiff amended his complaint to add claims of direct negligence against the employer, including allegations of negligent hiring, supervision, training, retention, and negligent entrustment.
The trial court dismissed the direct negligence claims, agreeing with defense counsel that a plaintiff cannot pursue both direct negligence and vicarious liability claims after the course and scope of employment have been admitted. The Martin court reversed on appeal, holding that Louisiana’s pure comparative fault system allows a jury to consider the degree of fault of both an employer and an employee. The court quoted with approval from a federal case:
Where an employer's potential fault is merged with that of the employee, the jury might not have a true picture of either party's wrongful acts—which may, in turn, magnify the comparative fault of the plaintiff or other individuals. For instance, a plaintiff involved in a car accident may bring a claim of negligence against a defendant truck driver who failed to exercise adequate care while driving on icy roads. If the employer then stipulates to vicarious liability, the plaintiff cannot also maintain a claim based on the employer's negligent training or supervision of the employee. . . . [W]here the employer can exclude evidence or avoid any public airing of its direct negligence merely because it is also financially liable under a theory of vicarious liability, the deterrent aims of tort law are thwarted.
346 So. 3d at 246 (quoting Gordon v. Great W. Cas. Co., No. 2:18-CV-00967 (LEAD), 2020 WL 3472634, at *4 (W.D. La. June 25, 2020)).
Although the holding in Martin appears to be the minority rule, the court’s reasoning echoes the rationale espoused by a number of other courts over the years. E.g., Quynn v. Hulsey, 310 Ga. 473, 850 S.E.2d 725 (2020); Poplin v. Bestway Express, 286 F. Supp. 2d 1316 (M.D. Ala. 2003); Quinonez ex rel. Quinonez v. Andersen, 144 Ariz. 193, 696 P.2d 1342 (Ct. App. 1984); Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 961 P.2d 1213 (1998); Lim v. Interstate Sys. Steel Div., Inc., 435 N.W.2d 830 (Minn. Ct. App. 1989); Clark v. Stewart, 126 Ohio St. 263, 185 N.E. 71 (1933); James v. Kelly Trucking Co., 377 S.C. 628, 661 S.E.2d 329 (2008); Finkle v. Regency CSP Ventures Ltd. P'ship, 27 F. Supp. 3d 996, 1000 (D.S.D. 2014); Fairshter v. Am. Nat’l Red Cross, 322 F. Supp. 2d 646, 654 (E.D. Va. 2004).