STATE OF LOUISIANA TRANSPORTATION COMPENDIUM OF LAW

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1 STATE OF LOUISIANA TRANSPORTATION COMPENDIUM OF LAW Prepared by Michael R. Sistrunk Kyle P. Kirsch Matthew J. Garver McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, LLC 195 Greenbriar Blvd., Suite 200 Covington, LA Tel: (504)

2 A. ELEMENTS OF PROOF FOR THE DERIVATIVE NEGLIGENCE CLAIMS OF NEGLIGENT ENTRUSTMENT, HIRING/RETENTION, AND SUPERVISION Louisiana employs a pure comparative fault scheme with regard to negligence actions. Within this scheme, there are four recognized theories that expose an employer to liability. These theories include the vicarious liability of the employer for the acts of the employee, as well as the stand-alone theories of negligent entrustment, negligent hiring, negligent retention, and negligent supervision. 1. VICARIOUS LIABILITY OR RESPONDEAT SUPERIOR a. What are the elements necessary to establish liability under a theory of Vicarious Liability? The theory of vicarious liability is codified in Louisiana Civil Code Article 2320 which states: Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the function in which they are employed.in the above cases, responsibility only attaches, when the masters or employers, teachers, or artisans, might have prevented the act which caused the damage, and have not done it. 1 While the actual text of the article denotes some heightened requirement with reference to the might have prevented language, the courts have generally applied common-law vicarious liability principles. 2 Thus, to maintain an action against an employer for the tortuous acts of an employee, one must demonstrate: (1) that the tortfeasor was in fact an employee, and (2) the employee was in the course and scope of his employment at the time of the tort. 3 The question of employment is typically straight forward and does not warrant extended analysis. A general (payroll) employer is liable for the torts committed by its employees, but is not liable for torts committed by an 1 La. C.C. Art See Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law (Michie Law Publishers 1996), the judicial interpretation of La. Civil Code Art has been codified by La. R.S. 9:3921, which provides in part, notwithstanding any provision in Title III of Code Book III of Title 9 of La. R.S. of 1950 to the contrary, every master or employer is answerable for the damage occasioned by his servant or employee in the exercise of the functions in which they are employed. 3 See generally Hickman v. Southern Pac. Transport Co., 262 So.2d 385 (La. 1972). 2

3 independent contractor. 4 However, there are several qualified exceptions that can impute the actions of a contractor to an employer. 5 In terms of the course and scope analysis, two theories, the control theory and the enterprise theory, are relevant. The control theory recognizes work as within the course and scope if the employer has the right to exercise control over how the work is performed. The enterprise theory requires that the activity in which the employee is engaged at the time of the tort is fairly attributable to the employer as a cost of the employer s enterprise, and not as a cost of life generally. 6 Thus, an employer may not be liable in some instances even if the employee commits an intentional tort on the business premises during work hours. 7 Generally, courts consider four factors when assessing vicarious liability. They include whether the tortuous act: (1) was primarily employment-rooted, (2) was reasonably incidental to the performance of employment duties, (3) occurred during working hours, and (4) occurred on the employer s premises. 8 It is not necessary that each factor be present. 9 In addition to the general rules set forth in the Civil Code, and particularly relevant to the trucking industry, Louisiana also recognizes a theory of logo liability. This doctrine is a judicially created mechanism which imposes statutory employer liability on the lessee of a vehicle if the lessee permits a non-employee to operate the leased equipment and that operator causes damages. 10 As a statutory employer, the carrier is vicariously responsible for the acts of the operator. The Fifth Circuit has limited this doctrine to cases arising during federally regulated trip leases of a tractor-trailer where the logo that appears on the truck is that of the renting carrier and not the owner. 11 The purpose of 4 See Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law (Michie Law Publishers 1996). 5 For example, an employer may be vicariously liable if the contract between the parties is not terminable at will or if the employer retains the power to control the performance of the contractor. Anderson v. New Orleans Pub. Serv., 583 So.2d 829 (La. 1991). Also, an employer may be held independently negligent for hiring an independent contractor who he knew or should have known to be irresponsible. Hemphill v. State Farm Ins. Co., 472 So.2d 320 (La. App. 3 Cir. 1985)(citing Evans v. Allstate Insurance Company, 194 So.2d 762 (La. App. 1 Cir. 1967)); see also Dragna v. A& Z Transp., Inc., 2015 WL (MDLA 2015)(citing Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 67 So.3d 1277 (La. App. 5 Cir. 2011)( In determining whether a principal is negligent for hiring an irresponsible independent contractor, the court must consider the principal s knowledge at the time of the hiring. ). 6 See Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law (Michie Law Publishers 1996) and Reed v. House of Décor. Inc., 468 So.2d 1159 (La. 1985). 7 See Pye v. Insulation Technologies, Inc., 700 So.2d 892 (La.App. 5 th Cir. 1997) where an employer was held not liable when an employee, after questioning a supervisor about reports that the employee s work was unsatisfactory, struck the supervisor with a piece of wood. 8 Ellender v. Neff Rental, Inc., 965 So.2d 898 (La.App. 1 st Cir. 6/15/07)(citing LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974)). 9 Baumeister v. Plunkett, 673 So.2d 997 (La. 1996). 10 Simmons v. King, 478 F.2d 857, 860 (5 th Cir. 1973) (superseded by regulation as stated in Jett v. Ereden Trucking Co, Inc., W.D.Okla., Jan. 9, 2012), Empire Indem. Ins. Co. v. Carolina Casualty Ins. Co., 838 F.2d 1428 (5 th Cir. 1988), and Tolliver v. Naor, 2001 WL (E.D.La). 11 3

4 this doctrine is to ensure that carriers take control of and responsibility for the leased equipment during the term of the lease. The watershed case announcing this theory is Simmons v. King. 12 In this case, a tractor trailer and its driver were leased to Dubose Trucking Co., a carrier certified by the ICC to transport sugar. The rig rear-ended the plaintiff s vehicle and Dubose Trucking Co. was held vicariously liable. The Court held that if there is an existing lease between the ICC-authorized carrier and an owner of leased equipment and the equipment bears the carrier s ICC placard, then the driver of the equipment will be deemed to be the carrier s statutory employee. Thus, the carrier will be held vicariously liable for the use and/or misuse of the equipment. This vicarious liability is binding even if the leased driver is making a trip during the term of the lease but outside the scope of his employment, as long as he continues to display the carrier s ICC placard. 13 The carrier may terminate the lease only if the carrier/lessee: (1) removes its identifying placard from the leased equipment, and (2) obtains a cancellation receipt from the equipment owner. 14 The court in Simmons, supra, relied primarily on the lease between the parties, but to a lesser extent the ICC regulations, in finding vicarious liability. The more recent district court case of Jett v. Van Eerden Trucking Co., Inc., 15 signals less reliance on the ICC regulations, wherein Jett purports to have superseded Simmons by regulation. 16 In Jett, plaintiffs were pulling a horse trailer when they were hit from behind by a tractor/trailer driver by defendant Bancroft. 17 The tractor was owned by defendant Hughston Trucking, LLC and the trailer was owned by defendant Van Eerden Trucking Company, Inc. 18 There was no lease in place for the use of the equipment. Van Eerden moved for summary judgment claiming it could not be liable for any negligence on the part of Bancroft or Hughston. 19 Jett filed a cross motion for summary judgment asking the court to find Van Eerden liable. The court granted the motion for summary judgment finding that Van Ereden was not vicariously liable based on the theories of statutory employer or implied lease. 20 In finding that neither the statutory employee nor implied lease theory applied, the Jett court noted that amendments to the federal regulations over the years undercut the regulations basis for statutory employee or implied lease 12 Simmons v. King, 478 F.2d 857, 860 (5 th Cir. 1973). 13 Empire Indem. Ins. Co. v. Carolina Casualty Ins. Co., 838 F.2d 1428 (5 th Cir. 1988). 14 Jackson v. O Shields et al, 101 F.3d 1083 (U.S. 5 th Cir. 1996). 15 Jett v. Eerden Trucking Co., Inc., 2012 WL (W.D. OK Jan. 9, 2012). 16 See also Ross v. Wall Street Systems, 400 F.3d 478 (6 th Cir. 2005). 17 Jett, 2012 WL

5 liability. The ICC in 1986, responded to cases interpreting its regulations and stated: [t]he commission did not intend that its leasing regulations would supersede otherwise applicable principals of State tort, contract, and agency law and create carrier liability where none would otherwise exist. Our regulations should have no bearing on this subject. Application of State law will produce appropriate results. 21 The ICC further bolstered its clarifications with the 1992 amendment of adding the following subsection: (4) Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether this lessor or driver provided by the lessor is an independent contractor or an employee of the authorized contract carrier. An independent contractor relationship may exist when a carrier lessee complies with 49 U.S.C and attendant administrative requirements. 22 Jett, however, is distinguishable from Simmons on the facts. In Simmons, the court relied primarily on the written lease between the parties to find liability and less on the ICC regulations. In Jett, there was no explicit lease between the parties. The court did state that the substance of the relationship controls, not how the parties label the agreement. 23 Thus, Jett signals a move away from the ICC regulations as support for finding statutory employee or implied lease liability. Jett has not been tested on Appeal. 2. NEGLIGENT ENTRUSTMENT a. What are the elements necessary to establish liability under a theory of negligent entrustment? Under a negligent entrustment theory, the plaintiff must generally allege and prove that (1) the entrustee was incompetent, inexperienced, or reckless; (2) the entrustor knew or had reason to know of the entrustee s incompetence; (3) that there was an entrustment of a thing; (4) that the entrustment created an appreciable risk of harm to the plaintiff and a duty on the part of the entrustee; and (5) the entrustee s negligence caused the harm of the plaintiff. 24 Liability for negligent entrustment may also arise from the long-term, open-ended loan of a vehicle to someone that the owner knows or should know is an habitual abuser of alcohol/drugs and is prone to drive under the influence of alcohol/drugs NEGLIGENT RETENTION/HIRING/SUPERVISION The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 Chi.-Kent L.Rev. 717, 730 (1977) and Oaks v. Dupuy, 740 So.2d 263 (La.App. 2 nd Cir. 8/18/99). 25 Frain as Tuttrix of Beason v. State Farm Ins., 421 So.2d 1169 (La. App. 2 Cir. 1982). 5

6 a. What are the elements necessary to establish liability under a theory of negligent retention/hiring/supervision? Negligent retention, hiring, and supervision are stand-alone claims of negligence apart from the theory of vicarious liability, although these claims are also rooted in Louisiana Civil Code Article These causes of action refer to independent acts of negligence committed by the employer. Negligent retention, hiring, and supervision claims are still subject to Louisiana s default duty-risk analysis. Thus, in order to recover on the theory of negligent retention/hiring/supervision, a plaintiff is required to prove that: (1) an employment relationship existed; (2) that the employee was incompetent; (3) that the employer knew or should have known of the employee's incompetence; (4) that the employee was negligent on the occasion giving rise to the plaintiff's injuries; and (5) that the employer's negligence was a cause in fact and a legal cause of the harm to plaintiff. 26 B. DEFENSES 1. TRADITIONAL TORT DEFENSES Depending on the facts of the particular case, and given the derivative nature of these theories, traditional tort defenses may apply; such as comparative fault, failure to mitigate damages, superseding and intervening cause, etc. C. PUNITIVE DAMAGES 1. U.S. SUPREME COURT CAMPBELL DECISION S LIMITATIONS ON PUNITIVE DAMAGE AWARDS: In State Farm v. Campbell, 538 U.S. 408 (2003) the United States Supreme Court explained: Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In Haslip, in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. We cited that 4-to-1 ratio again in Gore, 517 US, at 581, 116 S. CT. 26 Harris v. Pizza Hut of Louisiana, 455 So.2d 1364 (La. 1984), Smith v. Orkin Exterminating, 540 So.2d 363 (La.App. 1 st Cir. 1989), and Roberts v. Benoit, 605 So.2d 1032 (La. 1991)(on rehearing). 6

7 1589. While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State s goals of the deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1. Nonetheless, because there are no rigid bench marks that the punitive damages award may not surpass, ratios greater than those that are previously upheld may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages..... The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outer most limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendants conduct and the harm to the plaintiff. Thus, the Supreme Court made clear in Campbell that when compensatory damages are substantial then it is likely that only a one to one ratio of punitive damages will comport with due process LOUISIANA JURISPRUDENCE APPLYING CAMPBELL S RATIO PRINCIPLE: In Grefer v. Alpha Technical the Fourth Circuit Court of Appeal recognized the following: when compensatory damages are substantial, and a lesser ratio, perhaps only equal to compensatory damages, can reach the outer most limit of the due process guarantee. 28 The Grefer Court went on to note that a compensatory award of $1 million was substantial, 29 and concluded that the Gore guidepost would [only] justify punitive award at or near the amount of compensatory damages. 30 Applying the same reasoning the Fourth Circuit Lester v. Exxon Mobile Corp., determined that the trial court did not err in reducing the multiplier for punitive damages from 3 to 1.5 times the compensatory damages at the hearing of a new trial See also Vanderbilt Mortg. and Finance, Inc. v. Flores, 692 F.3d 358 (5 th Cir. 2012), which considers the ratio test on factor in the three-factor test outlined in Campbell. the other two factors include: 1) the degree of reprehensibility of the defendant s misconduct and 2) the different between a jury award and analogous civil penalties authorized or imposed in comparable cases. 28 Grefer v. Alpha Technical, 965 So.2d 511, 523 (La. App. 4 Cir. 08/08/07). 29 Grefer, 965 So.2d at Grefer, 965 So.2d at Lester v. Exxon Mobile Corp., 2013 WL (La. App. 4 Cir. 06/26/13) 7

8 The Louisiana Third Circuit Court of Appeal, in Leary v. State Farm Mutual Automobile Ins. Co., held that 1 to 1 ratio was appropriate in a case in which the jury awarded 1.5 million dollars in general damages and 1.7 million dollars in punitive damages. 32 In Hingle v. M. Home Assur Co. the Third Circuit found that a 2 to 1 ratio was appropriate wherein a drunk driver of an 18 wheeler ran a red light and collided with a car killing a two year old daughter and injuring both parents. 33 The Hingle Court found that the 2:1 ratio satisfied due process because of the potential for greater harm, namely both parents could have been killed. Therefore, the award of $5 million in punitive damages met due process even thought the underlying award amounted to $2.5 million. In Mosing v. Domas the Louisiana Supreme Court upheld a $500,000 exemplary damages award given Domas proclivity to drive while under the influence of alcohol and the ineffectiveness of previously imposed criminal sanctions to deter his irresponsible behavior. 34 The Court noted the defendant s long history of alcohol-related offenses 35 spanning an eight year period. 36 It noted that the tortfeasor had even pled guilty to his second DWI less than two weeks prior to the accident at issue and then a mere thirteen days later, Domas was back on the road, driving while under the influence of alcohol. Finally, it pointed to his apparent lack of remorse 37 as he chose not to appear at the trial of this matter. 38 The Louisiana Fifth Circuit Court of Appeal, in Thistlewaite v. Gonzalez, reduced a punitive damage award to one of the plaintiffs in that case to a 1 to 1 ratio with the compensatory damages award. 39 In Thistlewaite, the plaintiff was bringing a wrongful death and survival claim on behalf of the decedent who died in the hospital following an accident caused by drunk driver. The decedent was seen burning at the scene and rolling on the ground to put the fire out. Decedent described the extreme pain he was in while he was at the scene. It was noted that the decedent had suffered burns to his entire face, entire right arm, half his left arm, his chest, back and both legs. Due to the burns of his respiratory system decedent had to be intubated shortly after arriving at the hospital and remained that way unable to speak throughout his time at the hospital till his death. He received many days of painful treatment in the burn unit, went into shock, ARDS 32 Leary v. State Farm Mutual Automobile Ins. Co., (La. App. 3 Cir. 03/05/08), 978 So.2d 1094, 1102, writ denied, (La. 05/30/08), 983 So.2d Hingle v. M. Home Assur Co., 40 So.3d 1169 (La. App. 2 Cir. 6/2/10), writs denied, 48 So.3d 1095(La. 10/29/10) 34 Mosing v. Domas, 830 So.2d 967, 982 (La. 2002) 35 Mosing, 830 So.2d at Mosing, 830 So.2d at Mosing, 830 So.2d at Mosing, 830 So.2d at Thistlewaite v. Gonzalez, (La. App. 5 Cir. 12/18/12), 106 So.3d 238,

9 and then renal failure requiring dialysis. He suffered a total of eight days before succumbing to his injuries. The Court noted his compensatory damages of $3.6 million ($3.5 million for survival action damages) were on the high end and as a result the court felt a smaller ratio was appropriate. The Court also found that a $1.5 million punitive award was appropriate to the second plaintiff who received $500,000 in compensatory damages. Thus, it approved a three to one ratio in this case even though this plaintiff had no physical injuries. However, it needs to be noted that the Thistlewaite Court found that almost all the factors that one looks to when analyzing the size of a punitive damage award weighed heavily in favor of a significant exemplary damages award. In particular the Thistlewaite Court found that: (1) the defendant s conduct was very reprehensible as he did not admit to being intoxicated on the night of the accident, had two prior DWIs, was terminated in the past for testing positive for cocaine and had previously been incarcerated for selling cocaine, thus, this factor weighed heavily in favor of a significant award; 40 (2) the defendant at issue did not have any significant criminal or civil penalties resulting from his very reprehensible conduct 41 this weighs heavily in favor of a significant award of exemplary damages[;] 42 (3) the harm could have been much worse as two others could have been killed in the accident weighed heavily in favor of a significant punitive award; 43 and (4) no evidence of wealth was presented so this was not considered. 44 This demonstrates that even when the tortfeasor s conduct satisfies most of the factors warranting a significant award of punitive damages said award will still likely remain in the 1 to 2:1 ratio. 3. IS EVIDENCE SUPPORTING A DERIVATIVE NEGLIGENCE CLAIM PERMISSIBLE TO PROVE AN ASSERTION OF PUNITIVE DAMAGES? In Louisiana, punitive damages are generally not recoverable. However, the Civil Code does permit punitive damages in one situation relevant to the trucking industry. Article states that punitive damages are allowed when the injuries on which the action is based were caused by wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause-in-fact of the plaintiff s injuries. 45 This concept is significant when viewed in conjunction with vicarious liability. There are cases from one Louisiana Circuit Court of Appeal holding that an employer can be held vicariously liable for punitive damages under La. Civ. Code 40 Thistlewaite, 106 So.3d at Thistlewaite, 106 So.3d at Thistlewaite, 106 So.3d at Thistlewaite, 106 So.3d at Thistlewaite, 106 So.3d at La. C.C. Art

10 art However, it should be noted that there is dicta from the Louisiana Supreme Court and another Circuit Court of Appeal casting doubt on this conclusion. 46 The Louisiana Supreme Court has made numerous pronouncements regarding the general public policy against punitive damages. 47 In Berg v. Zummo the Louisiana Supreme Court examined the legislative history of La. Civ. Code art noting: [T]he bill was targeted at intoxicated drivers and was intended to punish the intoxicated defendant... [to] punish him financially the way he should be punished by paying additional damages [citation omitted]. Although there was some discussion about insurance coverage for such damages, there was no discussion that the bill would penalize anyone but the intoxicated driver. 48 Given this clear legislative intent the Court held: We find the legislative history reflects the legislature s intent to penalize only the intoxicated driver of motor vehicle (sic) and is in line with the narrow construction that this Court gives to penal statutes. Thus, we affirm the court of appeal s holding that La. C.C. art does not allow the imposition of punitive damages against person[s] who have allegedly contributed to the driver s intoxication. 49 The Berg court did note two Fourth Circuit decisions finding that an employer can be held liable for punitive damages, but went on in a footnote to make clear that it was reserving judgment on this issue. The footnote specifically advised that [w]e express no view on whether punitive damages can be imposed against a party who is vicariously liable for general damages resulting from conduct of an intoxicated person, such as an employer. 50 In Ross v. Conoco, which was decided eighteen months after Berg, the Louisiana Supreme Court appears to have rejected the reasoning of the Fourth Circuit jurisprudence holding employers vicariously liable for punitive damages. 46 Berg v. Zummo, (La. 04/25/01), 786 So.2d 708, 717; Darby v. Sentry Ins. Auto. Mut., (La. App. 1 Cir. 03/23/07), 960 So.2d 226, 230 n.1, writ denied, (La. 03/28/07), 953 So.2d Ross v. Conoco, Inc., (La. 10/15/02), 828 So.2d 546, 555( providing A fundamental tenet of [Louisiana] law is that punitive or other penalty damages are not allowable unless expressly authorized by statute. ) 48 Berg v. Zummo, (La. 04/25/01), 786 So.2d 708, Berg, 786 So.2d at Berg, 786 So.2d at 718, n.6. 10

11 Ross involved plaintiffs who were seeking punitive damages for wanton and reckless disregard of public safety in the storage of hazardous and toxic substances. The plaintiffs alleged that the defendants conspired to handle hazardous substances and, as a result all of the defendants, were responsible as co-conspirators for the acts of one of the conspirators under La. Civ. Code art The Ross court reversed the Third Circuit Court of Appeal s finding that the co-conspirators could be liable for punitive damages holding [e]ven if plaintiffs did sufficiently allege a conspiracy to store, handle, or transport wantonly or recklessly the offending vinyl chloride, La. Civ. Code art does not support the imposition of punitive damages against parties based solely on the physical acts of their co-conspirators. 51 The court instructed that, while La. Civ. Code art does provide for solidary liability 52 among co-conspirators for damages caused by willful or intentional acts of co-conspirators, it does not apply to punitive damages. The purpose of solidary liability, the court reasoned, is to compel any tortfeasor to pay an entire judgment; whereas, the purpose of punitive damages is to punish and deter similar conduct. 53 The court explained: Additionally, the language of Article 2324 that conspirators are answerable in solido for damage caused by such act indicates that the Article imposes solidary liability only for compensatory damages. As the dissenting judge in the court of appeal below points out, this wording is important. See Ross, 805 So.2d at 369 (Amy dissenting). It is compensatory damages that recompense a plaintiff for injury caused by a defendant s act. Punitive damages, on the other hand, are not caused by a defendant s act and are not designed to make an injured party whole. Rather, they are meant to punish the tortfeasor and deter specific conduct to protect the public interest. Consequently, we conclude that the solidarity imposed by Article 2324 cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator s individual conduct must fall within the scope of the applicable penal statute. 54 The Ross court, in support of its conclusion, looked to the plain language and legislative history of La. Civ. Code art , as well as La. Civ. Code art : 51 Ross, 828 So.2d at Solidary is the civilian way of saying Joint and Several liability. 53 Ross, 828 So.2d at 552, citing, James v. Formosa Plastics Corp., (La. App. 1 Cir.. 04/04/96), 672 So.2d 319(Note: James was superseded by statute. James was decided prior to the effective 1996 amendment to La. C.C. art. 2324)

12 A look at the jurisprudence interpreting Article which was enacted at the same time as Article is also helpful to our analysis. This court in Berg v. Zummo, (La.4/25/01), 786 So.2d 708, adopted the reasoning of Bourque and concluded that the legislature attempted to target only the conduct of the intoxicated driver of the motor vehicle when it passed Article ; thus, the Article does not allow the imposition of punitive damages against persons who have allegedly contributed to the driver's intoxication. As we are determining here, former Article was similarly targeted only at those parties who directly store, handle, or transport the hazardous substance that harms the plaintiff. Accordingly, alleged co-conspirators cannot be brought within the scope of this punitive statute through the application of Article Therefore, even assuming that plaintiffs can successfully prove the existence of a conspiracy among the employer and non-employer defendants to harm or commit a battery upon Ross and Landon by misrepresentation and failure to warn of the hazards of vinyl chloride, we conclude that the non-employer defendants who have never had physical contact with the vinyl chloride at issue cannot be assessed punitive damages under former Article based on the acts of storage, handling, or transportation by alleged coconspirators. The civil conspiracy set forth in Article 2324, when sufficiently proven, authorizes the award of compensatory damages only. 55 Prior to Berg, Ross, and the Fourth Circuit cases, a decision was rendered by the United States District Court for the Eastern District of Louisiana concluding that an employer could not be held vicariously liable for punitive damages under La. Civ. Code art Chief Judge Berrigan noted in Smith v. Zurich American Ins. Co., that: An extensive search of Louisiana case law has located no case that dealt with this issue directly, much less declared 55 Ross, 828 So.2d at

13 that an employer can be held liable separate and apart from the insurer, for punitive damages under Article Judge Berrigan determined that the clear language of La. Civ. Code art applies only to the defendant whose intoxication while operating a motor vehicle was a cause-in-fact of the resulting injuries. 57 She then went on to apply the rules of law that Louisiana only permits punitive damages when expressly authorized and said statutes are strictly construed to conclude as follows: Considering these general principles, and the lack of any relevant Louisiana jurisprudence holding an employer liable under this particular statute, [the employer] is entitled to summary judgment dismissing the claims for exemplary damages as provided in Article In Darby v. Sentry Insurance, the First Circuit Court of Appeal reiterated the Berg courts reservation that holding an employer vicariously liable for punitive damages may be contrary to the principle of strict construction of punitive statutes, we leave analysis for another day. 59 However, it then went on to reiterate that an employer cannot be held liable for punitive damages via a civil conspiracy allegation nor can the employer be held liable for punitive damages under a negligent entrustment theory. The above jurisprudence permits an employer to argue that Ross and Darby s rationale for limiting La. Civ. Code art to compensatory damage claims is equally applicable to La. Civ. Code art This conclusion is bolstered by the fact that both articles are found in Book II, Title V, Chapter 3 of the Louisiana Civil Code entitled Of Offenses and Quasi Offenses, and that Louisiana s rules of interpretation provide that laws on the same subject matter should be interpreted in reference to each other. 60 The first article of Chapter Three La. Civ. Code article 2315, forms the basis of all tort liability in Louisiana, and the remaining articles (La. Civ. Code arts ) elaborate on the concept of fault and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible. Further, both articles apply to damages caused and/or occasioned by another person. The applicable jurisprudence certainly demonstrates that the question of whether an employer can be held vicariously liable for punitive damages is still up 56 Smith v. Zurich American Ins. Co., 1996 WL (E.D. La. 1996). 57 Smith, 1996 WL at p Smith, 1996 WL at p Darby, 960 So.2d at 230 n La. Civ. Code art

14 in the air in Louisiana and that there appears to be strong support for the proposition that an employer cannot be held liable for such damages. D. SEATBELT EVIDENCE Louisiana Revised Statute 32:295.1 provides in pertinent part: A. (1) Each driver of a passenger car, van, sports utility vehicle, or truck having a gross weight of ten thousand pounds or less, commonly referred to as a pickup truck, in this state shall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion *** E. In any action to recover damages arising out of the ownership, common maintenance, or operation of a motor vehicle, failure to wear a safety belt in violation of this Section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this Section shall not be admitted to mitigate damages. Pursuant to the plain language of La. R.S. 32:295.1(E), seat belt evidence is inadmissible to prove comparative fault or mitigate damages when a party is required to wear a seat belt pursuant to Section (A)(1) of the statute. In Rougeau v. Hyundai Motor America, the Louisiana Supreme Court held that seat belt evidence is also inadmissible to prove that a plaintiff s failure to wear his seat belt caused his injuries pursuant to Section 295.1(E). 61 In 2014, House Bill No. 606 was introduced to the Louisiana House of Representatives. The Bill proposed the following Amendment to La. R.S. 32:295.1(E): In any action to recover damages arising out of the ownership, common maintenance, or operation of a motor vehicle, the court shall permit any party to admit evidence of failure to wear a safety belt in violation of this Section. If that party proves by a preponderance of the evidence that the injured person failed to wear a safety belt in violation of this Section at the time the injury So.2d 147 (La. 1/15/02). 14

15 occurred, any damages awarded to that person shall be reduced by fifteen percent of the total damages awarded to that person. House Bill No. 606 is still pending in the Committee on Civil Law and Procedure. The Bill is being pushed by Representative Neil C. Abrahamson with support from the Louisiana Association of Business and Industry (LABI). In other contexts, i.e., in a case where a party is operating a vehicle other than passenger car, van, or truck as defined by Section 295.1(A)(1) and is not required to wear a seatbelt, Louisiana jurisprudence still provides that seatbelt evidence inadmissible to determine comparative fault or to mitigate damages because the plaintiff has no duty to wear a seat belt. 62 Louisiana Courts have also held that a third-party cannot be attributed fault with respect to a plaintiff s failure to wear a seat belt in cases where the Louisiana Seat Belt Law, La. R.S. 32:295.1, does not require that the plaintiff wear a seat belt and that the failure to have operable seat belts in such vehicles is not actionably defective. 63 This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice WL (La. App. 1 Cir. 7/6/10). 63 Brown v. Landry, 552 So.2d 1299 (La. App. 5 Cir. 1980); Hammer v. City of Lafayette, 502 So.2d 301 (La. App. 2/4/87). 15