Opinion
CIVIL ACTION 00-3810 SECTION "T"(5)
January 22, 2002
Before the Court is a Motion for Summary Judgment filed on behalf of the defendant, National Railroad Passenger Corporation, d/b/a Amtrak ("Amtrak"). The parties waived oral argument and the matter was submitted for the Court's consideration on the briefs alone Wednesday, January 16, 2002. The Court, having considered the arguments of counsel, the evidence presented, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The plaintiff, Sarah Rodrigue, filed this suit claiming that while traveling on an Amtrak train from Houston, Texas to Schriever, Louisiana, she was sexually harassed by an Amtrak attendant, Ted Anderson, based upon an offer of $200.00 for sex and a non-consensual kiss. In addition, plaintiff asserts a cause of action for the tort of kidnaping, alleging that Anderson told Rodrigue that he would get her luggage and help her off the train when they got to her stop, however he did not come to get her and she therefore missed her stop continuing on to New Orleans. Finally, plaintiff sets forth a charge of sexual battery and assault based upon the non-consensual kiss. As such, plaintiff claims Amtrak is liable both directly for the negligent hiring and retention of Anderson and vicariously for Anderson's alleged intentional torts.
More specifically, it is alleged that on January 9, 2000, Sarah Rodrigue was escorted to her seat aboard the Amtrak train, Sunset Limited, by train attendant, Ted Anderson. Plaintiff contends that upon seating her, Anderson told plaintiff that she was "his favorite". Within fifteen minutes of departure, plaintiff contends that Anderson collected tickets from the passengers however failed to collect her ticket. Shortly thereafter, plaintiff asked for a glass of wine, but Anderson returned with a bottle of wine and refused payment. Some time after, he asked her if she would have sex with him for $200.00. The plaintiff declined the offer and asked Anderson to show her to the smoking lounge and to give her a tour of the train. On the tour, Anderson allegedly opened a window saying "[y]ou know, anything can happen on a train." Anderson then escorted the plaintiff into a room, which she believed to be a bathroom and non-consensually kissed her. Rodrigue did not report any of this conduct to any Amtrak personnel on the train. Furthermore, plaintiff contends that Anderson brought her a total of three bottles of wine, without accepting payment, during the course of the trip. She however alleges that she did not consume the wine, but merely pretended to be drinking. Rodrigue made acquaintance with a fellow passenger, Anthony Brown, in the smoking lounge. She revealed to him the offensive conduct of Anderson around one hour before reaching Schriever, Louisiana.
Plaintiff further contends that Anderson told her that he would bring her luggage to her and show her off the train when they got to her stop in Schriever, Louisiana. He did not do this and plaintiff missed her stop and continued on to New Orleans. She disembarked in New Orleans and first reported the inappropriate conduct of Anderson to Amtrak police officer, Jeanette Winston. An investigation was instituted by Amtrak which led to the ultimate discharge of Anderson from his employment with Amtrak. Plaintiff additionally sets forth in Paragraphs 26-46 facts relative to the Amtrak hearing conducted in Los Angeles concerning this incident.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of Amtrak in Support of Summary Judgment:
Amtrak contends that it cannot be held vicariously liable for the alleged acts of Anderson as those acts were not in the course and scope of his employment. Amtrak has direct and specific written duties for train attendants which do not remotely contemplate the type of behavior alleged by the plaintiff. The alleged conduct in no way furthers any of Amtrak's public transportation or customer service objectives. Moreover, Amtrak has specific written policies which prohibit any conduct by an employee that would threaten, harass, intimidate, or assault a member of the public or other employee while on duty on Amtrak property. Additionally, any conduct involving dishonesty, immorality, or indecency is strictly prohibited. As such, Amtrak submits that plaintiff cannot prove that Anderson was acting within the course and scope of his employment as a train attendant; therefore, Amtrak cannot be held vicariously liable.
Next, Amtrak argues that it cannot be held directly liable for the alleged acts of Anderson. Amtrak had no actual or constructive notice of the alleged acts as plaintiff took no action to report the alleged misconduct to anyone of authority. Moreover, Amtrak had no constructive notice of the alleged acts as it had no prior or contemporaneous knowledge of Anderson' alleged offensive behavior. There was no indication in his prior behavior of any inappropriate behavior or of any tendency to conduct himself in any sexually offensive or inappropriate manner. Accordingly, plaintiff does not have a valid claim for direct liability.
Finally, plaintiff admits that the Schriever stop was announced and that the train did in fact stop. The plaintiff does not allege that Anderson or any other Amtrak employee forcibly held her in her seat or prevented her from departing the train. Instead, plaintiff merely contends that she missed her stop because Anderson did not retrieve her luggage and come to get her when the train stopped. Amtrak contends that plaintiff is not a minor, and was not in need of special assistance, and therefore is responsible for her own disembarkment from the train. Simply, there are no facts to support a cause of action for kidnaping.
B. Arguments of Plaintiff in Opposition to Summary Judgment:
Plaintiff sets forth that there are three bases for this action: (1) direct liability, (2) vicarious liability, and (3) liability for the conduct surrounding Anderson's disciplinary hearing in Los Angeles. Plaintiff concedes that it has no opposition to the cause of action based upon direct liability and then states that the third basis is not at issue herein. As such, plaintiff contends only that there is a material issue of fact with regard to Amtrak's vicarious liability. More specifically, it is argued that two incidents constitute the assault and battery, namely, Anderson's threat to throw plaintiff off a moving train and forcibly kissing plaintiff, each of which occurred during the course of touring the train. Therefore, there is a genuine issue of material fact as to whether these incidents, occurring while touring the train, are so closely connected to Anderson's employment duties that it constitutes a risk of harm fairly attributable to defendant's business. It is argued by the plaintiff that giving tours of the train to first-time passengers is within the scope of his job duties. Plaintiff further contends that the fact that there are specific prohibitions against this type of behavior is proof that such an incident is a risk that is foreseeable to the employer.
III. LAW AND ANALYSIS:
A. Law on Summary Judgment:
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, 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 a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Law on Vicarious Liability:
In 1996, the Louisiana Supreme Court decided Baumeister v. Plunkett, 673 So.2d 994 (1996) (hereinafter "Baumeister"), which sets forth the standards applicable in determining vicarious liability under Louisiana law. In Baumeister, the court held that a hospital was not vicariously liable for the sexual battery committed by one of its supervisors upon a co-employee during working hours on the hospital's premises. The Louisiana Supreme Court held that:
The course and scope of employment test refers to time and place. Benoit v. Capitol Manufacturing Co., 617 So.2d 477, 479 (La. 1993). The scope of employment test examines the employment-related risk of injury. Id. . . . In fact, this court has held that in order for an employer to be vicariously liable for the tortious acts of its employee the "tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interest." Barto v. Franchise Enterprises, Inc., 588 So.2d 1353, 1356 (La.App. 2d Cir. 1991), writ denied, 591 So.2d 708 (1992) (quoting LeBrane v. Lewis, 292 So.2d 216, 217, 218 (La. 1974) [(hereinafter "LeBrane")]).Baumeister, at 996. "An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours." Id. (quoting Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2d Cir. 1982)) (other citation omitted). "Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objective." Id.
Furthermore, the court in Baumeister cites to its decision in LeBrane v. Lewis as correctly setting forth the following factors for determining the vicarious liability of an employer in such a context:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence 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.
Baumeister, at 996-997 (citing LeBrane, at 218). All four factors do not necessarily have to be met before liability may be found. Id. (citingMiller v. Keating, 349 So.2d 265, 268 (La. 1977)). Moreover, the court inBaumeister notes that an employer is not vicariously liable merely because his employee commits an intentional tort on the employer's premises during working hours, but the particular facts of each case should be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment. Id. (citing Scott v. Commercial Union Ins. Co., 415 So.2d at 329.)
On the facts of the case, the court in Baumeister found that LeBrane factors (3) and (4) were easily met. Id. at 999. However, the court held that factors (1) and (2) were not met. Id. First, as to factor (2) the court stated that
the likelihood . . . that a nursing supervisor will find an employee alone in the nurses' lounge and sexually assault her is simply not a risk fairly attributable to the performance of the supervisor's duties. A nursing supervisor's responsibilities do not include sexually oriented physical contact with a co-employee. And it is not at all foreseeable from the perspective of the hospital that such conduct will take place on hospital premises during working hours.Id. (footnote omitted). Then, in finding under factor (1) that the supervisor's sexual assault was entirely extraneous to his employer's interests and, therefore, that serving the master's business did not actuate the servant at all, the court reasoned as follows:
Here in a footnote the court states that "[s]imilar conduct where a hospital's patient is the victim is perhaps sufficiently different to warrant a different result." Id. at 999, n. 2. (citing Samuels v.Southern Baptist Hospital, 594 So.2d 571 (La.App. 4th Cir. 1992), writ denied, 599 So.2d 319 (1992) (Hospital held liable for rape of patient by nursing assistant because taking care of patient's well-being was part of employee's duties and rape was reasonably incidental to the performance of these duties, even though act was unauthorized.)).
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. 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.Id. at 999-1000 (citing Ermert v. Hartford Insurance Co., 559 So.2d 467, 476-477 (La. 1990)).
Moreover, the court in Baumeister cites to several cases as delineating its approach to implementing the LeBrane elements to the facts of a case. Id. at 997-998. For example, the court points to LeBrane itself as being the leading case involving an employer's liability for intentional torts committed by its employees. Id. at 997. In LeBrane a dispute arose between a kitchen supervisor and a kitchen helper. LeBrane, at 217. After the supervisor fired the helper, the supervisor stabbed the helper on their way out of the building during an argument between the two. Id. The Supreme Court of Louisiana, in concluding that the dispute was "primarily employment-rooted" and thus that vicarious liability was proper, pointed to such determining factors as the fact that the fight was reasonably incidental to the performance of the supervisor's duties in connection with firing the recalcitrant employee and removing him from the business premises, and that the fight occurred on the employment premises during the hours of employment. Id. at 218.
Furthermore, the court in LeBrane stated that the rationale for finding that the employee was acting within his scope of employment was that the tortious conduct was so closely connected in time, place, and causation to his employment-duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests. Id. The LeBrane court expressly noted that the "employee's tortious conduct occurred while the employee was at least partly actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee, and it was reasonably consequent upon or incident to his performance of his employment function of hiring and firing sub-employees." Id. at 219.
Additionally, the court in Baumeister pointed to an Illinois sexual assault case as being instructive on the issue of vicarious liability.Baumeister, at 998 (citing Hunter v. Countryside Association For The Handicapped, Inc., 710 F. Supp. 233, 239 (N.D.Ill. 1989)). In Hunter, the court proclaimed that in order to hold an employer liable for the intentional torts of its employees under respondeat superior, the plaintiff must show that the torts were committed in furtherance of the employment. See Hunter v. Allis-Chalmers Corp., Engine Division, 797 F.2d 1417, 1421 (7th Cir. 1986). "The tortfeasing employee must think, however misguidedly, that he is doing the employer's business in committing the wrong." Id. at 1421-1422. In Hunter v. Countryside, the defendant supervisor's alleged sexual assault can in no way be interpreted as furthering Countryside's business." 710 F. Supp. at 239.
The Court in the case at hand must consider, however, that the court inBaumeister constrained its holding with regard to sexual acts cases by stating the following:
We do not mean to state, however, that all sexual acts are of a personal nature and might not sometimes be employment rooted. "A blanket rule holding all sexual attacks outside the scope of employment as a matter of law because they satisfy the perpetrators' personal desires would draw an unprincipled distinction between such assaults and other types of crimes which employees may commit in response to other personal motivations such as anger or financial pressures." Stropes v. Heritage House Children's Center, 547 N.E.2d 244 (Ind. 1989). We note also that we are not espousing a "motivation" test which focuses solely on whether the tortfeasor's act was motivated by a desire to further his personal interests.Baumeister, at 1000. The court in Baumeister noted that the facts ofSamuels v. Southern Baptist Hospital, 594 So.2d 571 (hereinafter "Samuels"), may " perhaps" have been sufficiently different from those inBaumeister to warrant a finding of vicariously liability. Baumeister, at 999, n. 2. Obviously, the holding in Baumeister controls, but Samuels presents some relevant distinctions, especially when a hospital's patient, and not a co-employee, is the victim. Id.
In Samuels, the court follows the LeBrane factors set forth earlier in deciding this sexual assault case. Samuels, at 573. Moreover, the court specifically states that "the 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. (citing Ermert, 559 So.2d at 477).
In analyzing the facts of the case, the court in Samuels found that although the employer was not negligent in employing the attacker as a nursing assistant (because the hospital performed an adequate background check of the employee, discovering no criminal record and an honorable discharge from the United States Army, to go along with the employee's satisfactory performance at the hospital before the attack), vicarious liability can be imposed upon the employer without regard to his own negligence or fault; it is a consequence of the employment relationship.Id. at 574 (citation omitted). The court in Samuels found that the assault occurred on the hospital's premises while the employee was on duty. Id. Furthermore, the court reasoned that ensuring a patient's well-being from others, including hospital staff, while the patient was helpless in a locked environment was part of the hospital's normal business. Id. Taking care of the patient's well-being was part of the duties of the nurse's assistant (the attacker). Id. Thus, the court held as follows:
The tortious conduct committed by [the employee-attacker] was reasonably incidental to the performance of his duties as a nurse's assistant although totally unauthorized by the employer and motivated solely by the employee's personal interest. Further, [the employee-attacker's] actions were closely connected to his employment duties so that the risk of harm faced by the young female victim was fairly attributable to his employer, who placed the employee in his capacity as a nurse's assistant and in a position of authority and contact with the victim. See Turner v. State, 494 So.2d 1292, 1295 (La.App. 2d Cir. 1986).Id.
C. The Court's Analysis:
In this case, the alleged conduct of Anderson clearly occurred in the workplace during the hours of Anderson's employment. As such, the third and fourth factors set forth in LeBrane are clearly met. The Court must therefore determine if the alleged acts were primarily employment rooted and reasonably incidental to the performance of Anderson's duties. The Amtrak "Manual A — Manual for On-Board Services Employees" sets forth the duties and standards applicable to all train attendants and employees. Specifically, the Standards section requires all employees to "demonstrate a friendly and cooperative attitude toward passengers and co-workers while performing their duties through the use of direct eye contact, frequent use of smiles and pleasant interaction." (Norville Affidavit, Exhibit 1, p. ix). Furthermore, employees are directed to assist all passengers while entraining, en route, and when detraining, and further to explain coach and sleeping car accommodation features, emergency equipment, appropriate service amenities and the feature cars available on the train. (Norville Affidavit, Exhibit 1, p. ix). Likewise, the Standards require employees to be familiar with and provide passengers with the appropriate service amenities. (Norville Affidavit, Exhibit 1, p. ix). Additionally, a function of the position of Train Attendant is to ensure that all passengers detrain at the correct station. (Norville Affidavit, Exhibit 1, A-8-26).
This Court notes that Manual A likewise specifically prohibits employees from assaulting, threatening, harassing, intimidating, fighting, or participating in any activity which would cause bodily injury. It further prohibits conduct involving dishonesty, immorality or indecency. (Norville Affidavit, Exhibit 1, A-1-2). Moreover, Amtrak's "Standards of Excellence" prohibit rudeness, assault, intimidation, horeseplay and use of profane or vulgar language. (Hanna Affidavit, Exhibit 2, p. 8).
It is the opinion of this Court that there are four acts which form the basis of plaintiff's claims: (1) offer of $200.00 for sex; (2) the kiss; (3) the window incident, and (4) the failure to detrain. The offer of money for sex was made after plaintiff asked Anderson for a glass of wine and he allegedly returned with a bottle of wine. The kiss and window incident both allegedly occurred while the plaintiff was on a requested tour of the train. It is the opinion of this Court that in light of the broad job duties and standards of a train attendant, reasonable minds could differ as to whether the first three incidents could be considered incidental to the performance of Anderson's job duties. While it can be argued that Anderson's actions with respect to Rodrigue were motivated by purely personal considerations and were not incident to his employment, this is a determination that must be made by the trier of fact at the conclusion of all testimony. Therefore, the issue of Amtrak's vicarious liability for these intentional torts of Anderson must be left for a trial on the merits.
With respect to the cause of action for "kidnaping" arising out of plaintiff's failure to detrain at her stop, this Court finds that the facts alleged do not adequately set forth such a claim. Louisiana law provides that a kidnaping is an "intentional and forcible seizing and carrying of any person from one place to another without his consent." La. R.S. 14:45(A)(1). The plaintiff merely contends that Anderson did not retrieve her luggage and help her off the train. There has been no allegation that Anderson in anyway intentionally and/or forcibly seized her and prevented her from exiting the train. The fact that this was plaintiff's first trip on a train and did not know where her luggage was located does not create issues of fact with respect to a kidnaping claim. It is the finding of this Court that plaintiff has failed to come forward with any evidence to suggest a genuine issue of fact in this regard, as such, summary judgment will be granted with respect to the kidnaping claim.
As conceded by the plaintiff, Amtrak has no direct liability for the alleged acts of Anderson. Accordingly, the Motion for Summary Judgment will be granted to the extent that it applies to any claims of the plaintiff for direct liability.
Finally, in the opposition memorandum plaintiff contends, without arguing in any detail, that Amtrak is liable for the mishandling and/or misconduct at the disciplinary hearing of Anderson conducted in Los Angeles. The Court has reviewed the Complaint and Final Pre-Trial Order in this case and finds that this is not a cause of action which has been pled. The paragraphs of the Complaint merely submit facts related to the damages sustained by the plaintiff and do not set forth any basis of liability against Amtrak for mishandling and/or misconduct at the disciplinary hearing. As such, Amtrak is not liable under any such theory and summary judgment will be granted to the extent that any such claim has been asserted.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed on behalf of defendant, National Railroad Passenger Corporation d/b/a Amtrak, be and the same is hereby DENIED IN PART and GRANTED IN PART. Said motion is denied with respect to plaintiff's claim of vicarious liability based upon the tortious acts of Anderson. Said motion is granted with respect to any claim of the plaintiff based upon a cause of action for kidnaping, direct liability, and/or mishandling or misconduct relative to the proceeding.