Opinion
Civil Action No. 01-1676, Section "A" (2)
September 13, 2002
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 19) filed by defendant Frischhertz Electric, Inc. ("Frischhertz"). Plaintiffs oppose the motion. The motion, set for hearing on September 11, 2002, is before the Court on the briefs without oral argument. For the reasons that follow the motion is GRANTED.
The motion was originally set for hearing on July 3, 2002, but was continued at plaintiffs' request.
Background
Plaintiffs seek damages under federal civil rights law and under state law for physical and mental injury arising out a June 2000 incident. Plaintiff Albert Mackles claims that defendant Deputy Gutierrez, employed by the St. Bernard Sheriff's Office, grabbed him, slammed him to the ground, cuffed him, and took him to jail all in violation of his constitutional rights. He claims various personal injuries as a result. His wife, also present at the scene of the incident, seeks damages of her own. At the time of the incident Gutierrez was working a paid traffic detail for defendant Frischhertz. Frischhertz was under contract with the State of Louisiana to perform electrical services at the intersection.
Plaintiff Albert Mackles is suing Gutierrez, Deputy Cowan, Sheriff Jack Stephens, and the St. Bernard Sheriff's Office under 42 U.S.C. § 1983 for violations of his federal civil rights.
Defendant Frischhertz was added as a defendant in the amended complaint. Plaintiffs allege that Deputy Gutierrez was working for Frischhertz at the time of the incident and is therefore vicariously liable for Plaintiffs' state law damages.
Frischhertz's Motion
Frischhertz seek summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Frischhertz asserts that it cannot be liable for Gutierrez's actions because there was no employer/employee relationship between the parties. In other words, Gutierrez was at all times an independent contractor. Frischhertz argues that there is no genuine issue of fact as to Gutierrez's status. Further, if the Court should find an employer/employee relationship, Frischhertz would nevertheless not be liable for Gutierrez's intentional tort.
In opposition, Plaintiffs contend that Gutierrez was an employee of Frischhertz Electric Company. They point out that Frischhertz made direct payments to Gutierrez for his services, and that Frischhertz determined the location, dates, and duration of employment for Gutierrez at his work locations. Frischhertz also retained the power to discharge any deputies who worked traffic detail for the company. Furthermore, Sheriff Stephens required all deputies working a paid detail to sign an indemnity agreement, and Frischhertz was likewise required to indemnify the Sheriff's Office. Plaintiffs argue that all of the circumstances listed above clearly demonstrate an employer-employee relationship between Gutierrez and Frischhertz.
Discussion
1. Summary Judgment Standards
In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (citingCelotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's case. Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548). If the moving party fails to meet this initial burden, the motion must be denied regardless of the nonmoving party's response. Id. 2. Employee Versus Independent Contractor
A well-established general rule under Louisiana law is that a principal is not liable for the delictual offenses committed by an agent who is an independent contractor in the course of performing his contractual duties. Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 379 (5th Cir. 2001) (citing Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549 (5th Cir. 1987); Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La.App. 1st Cir. 1989)). There is, however, an equally well-established exception to this rule in that a principal may be liable if it maintains operational control over the activity in question. Id. Although the Court must look to the totality of the circumstances when determining whether an employment relationship exists, the single most important factor is the right of the employer to control the work of the employee. Hillman v. Comm-Care, Inc., 805 So.2d 1157, 1163 (La. 2002); Murray v. Option Care, 801 So.2d 1203, 1204 (La.App. 4th Cir. 2001). The burden of proof lies with the party seeking to establish an employer-employee relationship.Hillman, 805 So.2d at 1163.
Another exception, not applicable here, applies if the activity engaged in by the independent contractor is "ultrahazardous."
In support of its motion, Frischhertz submitted the affidavit of Jerry LaRivierre who attests that Gutierrez was hired only to perform traffic control services and that beyond indicating which portion of the intersection he was to work, Frischhertz provided no supervision and exercised no control over Gutierrez's actions or methods. Exh. B. Frischhertz also submitted Gutierrez's deposition in which he testified that road workers at the site did not tell him how to perform his functions and that all of his actions were based upon training he had received at the police academy. Supp. Motion Exh. A. Further, Frischhertz employees gave him no direction with respect to any of his traffic control activities including those relating to the Mackles incident. Id. Although Gutierrez had worked such traffic details for nearly a year before the incident, Frischhertz's answers to Plaintiffs' interrogatories show that only on three occasions had Gutierrez worked for Frischhertz.
In opposition, Plaintiffs submitted various answers to interrogatories by Frischhertz and Sheriff Stephens, as well as copies of checks paid to various persons by Frischhertz. Oppos. Exh. A. Plaintiffs also submitted the indemnity agreement, executed by Gutierrez on June 25, 1997, in which he agreed to hold harmless the Sheriff's Office for any injuries sustained while working a paid detail. Id. Exh. E.
Taking all of this evidence as a whole, none of it creates an issue of fact as to Frischhertz's right of control over Gutierrez's activities while working the paid traffic detail. The pay checks are not probative of control because Frischhertz had to pay Gutierrez for his services even as an independent contractor. The indemnity agreement between the Sheriff and Gutierrez likewise has no probative value with respect to whether Frischhertz controlled or had the right to control Gutierrez's activities. Nor do the interrogatories submitted by Plaintiffs contain anything to shed light on the control issue. Instead all of the evidence, including Frischhertz ability to discharge Gutierrez, is consistent with independent contractor status for Gutierrez vis à vis Frischhertz.
In sum, Plaintiffs bear the burden of establishing an employer relationship between Frischhertz and Gutierrez. Discovery is now near completion and trial is fast approaching yet Plaintiffs have come forward with no evidence upon which a reasonable trier of fact could hold Frischhertz liable for any alleged wrongdoing on Gutierrez's part.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 19) filed by defendant Frischhertz Electric, Inc. should be and is hereby GRANTED. Plaintiffs' claims against Frischhertz Electric, Inc. are DISMISSED.