415 So.2d at 329. See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La.App. 4th Cir.), writ denied, 491 So.2d 24 (1986); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir. 1984), writ denied, 463 So.2d 1321 (1985). The particular facts of each case must be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment.
The principal issue, or set of issues, in this case surround the propriety of the trial court's granting of a judgment NOV. As the discussions of this court in Bickham v. Goings, 460 So.2d 646 (La.App. 1st Cir. 1984), writ refused, 462 So.2d 1246 (1985), and in McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir. 1984), writ refused, 463 So.2d 1321 (1985), make clear, the standard for determining the propriety of granting a judgment NOV is the same as that to be used in determining the correctness of a directed verdict, that is, a judgment NOV, as a directed verdict, should be granted ". . . only if reasonable men, all inferences resolved in favor of the nomover, (sic) could not possibly arrive at a verdict for the nonmover." McClain, 460 So.2d at 682.
We have couched the underlying tort in language of negligent supervision, assuming that the Louisiana Supreme Court would not consider the priests' actions to be within the scope of their employment, nor would it consider the molestations a "risk of harm fairly attributable to the employer's business." See Roberts v. Benoit, 605 So.2d 1032, 1040-41 (La. 1991); McClain v. Holmes, 460 So.2d 681, 683-84 (La.Ct.App. 1984), writ denied, 463 So.2d 1321 (La. 1985). But even if the Diocese is liable for the priests' intentional acts under a respondeat superior theory, see Miller v. Keating, 349 So.2d 265, 268-69 (La. 1977), such liability does not affect our decision on what constitutes an "occurrence" or the number of occurrences suffered by each child.
Actions taken for "purely personal considerations entirely extraneous to the employer's interest" do not impute liability on the employer, even when the conduct occurs at work. Baumeister, 673 So. 2d at 998 (citing McClain v. Holmes, 460 So. 2d 681, 684 (La.App. 1 Cir. 1984) writ denied, 463 So. 2d 1321 (1985)).
617 So.2d 477, 479 (La.1993). Scott v. Commercial Union Ins. Co., 415 So.2d 327 (La.App.1982); McClain v. Holmes, 460 So.2d 681 (La.App.1984); Barto v. Franchise Enter., Inc., 588 So.2d 1353, 1356 (La.App.1991); Dunmiles v. St. Charles Parish Recreation Dept., 726 So.2d 485 (La.App.1999); Hubbard v. Lakeland Nursing Home, 734 So.2d 1280 (La.App.1999); Ryback v. Belle, 753 So.2d 383 (La.App.2000); Pye v. Insulation Tech., Inc., 700 So.2d 892 (La.App.1997); Swartz v. McNabb, 830 So.2d 1093 (La.App.2002); Affeltranger–Cheramie v. Zachary, 757 So.2d 751 (La.App.2000); Eichelberger v. Sidney, 771 So.2d 863 (La.App.2000).The parties dispute whether Coker's underlying dispute with Morris was entirely personal or whether it was employment-related.
Not only is the American Legion negligent in its own right, it is vicariously liable for the actions of the deputies who were special employees of the Legion. A determination as to whether a borrowed employee becomes the special employee of the borrower requires an assessment of inter alia, the level of supervision exercised by the borrower over the borrowed employees and whether the purported special employer has the authority to fire the person from the special employment position. Cheatham v. City of New Orleans, 378 So.2d 369 (La. 1979); Lejeune v. Allstate Ins. Co., 365 So.2d 471 (La. 1978); State Farm Mutual Auto. Ins. Co. v. LeBlanc, 460 So.2d 673 (La.Ct.App. 1st Cir. 1984), writ denied, 462 So.2d 653 (La. 1985); McClain v. Holmes, 460 So.2d 681 (La.Ct. App. 1st Cir. 1984); Faust v. Mendoza, 415 So.2d 371 (La.Ct.App. 1st Cir. 1982); Cappo v. Vinson Guard Service, 400 So.2d 1148 (La.Ct.App. 1st Cir. 1981); Benelli v. City of New Orleans, 478 So.2d 1370 (La.Ct. App. 4th Cir. 1985); Thompson v. New Orleans Public Belt R.R., 373 So.2d 1312 (La.Ct.App. 4th Cir. 1979). Our jurisprudence has held that special and general employers may be solidarily liable in tort to third parties injured by the negligence of their employees.
415 So.2d at 329. See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La.App. 4th Cir.), writ denied, 491 So.2d 24 ([La.]1986); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir. 1984), writ denied, 463 So.2d 1321 ([La.]1985). The particular facts of each case must be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment.
In addition, the court should consider all of the evidence, not just the evidence that supports the non-mover's case, and should give the non-mover the benefit of every legitimate and reasonable inference that can be drawn from the evidence by the jury. Department of Transp. and Development v. Wahlder, 554 So.2d 233 (La.App. 3rd Cir. 1989); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir. 1984). This court, in reviewing a JNOV, must use the aforementioned criteria in deciding whether or not the motion was properly granted.
415 So.2d at 329. See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La.App. 4th Cir.), writ denied, 491 So.2d 24 (1986); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir.1984), writ denied, 463 So.2d 1321 (1985). The particular facts of each case must be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment.
415 So.2d at 329. See also Tampke v. Findley Adhesives, Inc., 489 So.2d 299 (La.App. 4th Cir.), writ denied, 491 So.2d 24 (1986); McClain v. Holmes, 460 So.2d 681 (La.App. 1st Cir. 1984), writ denied, 463 So.2d 1321 (1985). The particular facts of each case must be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment.