Under the jurisprudence interpreting the above articles, an employee's exclusive remedy against his employer for an injury occurring within the course and scope of his employment is workers' compensation benefits. Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2d Cir. 12/6/95), 665 So.2d 672, 676, writs denied, 96-0063, 0100 (La. 3/8/96), 669 So.2d 404. Generally, a party to a lawsuit seeking to prove that an employee was within the course and scope of his employment must prove two elements: (1) that the injury suffered by the employee arose out of the employment ("the arising-out-of requirement"), and (2) that the employee suffered the injury during the course of his employment ("the during-course-of requirement"). See Kennedy v. Martin Gas Transportation Co., 96-100 (La.App. 3d Cir. 8/21/96), 680 So.2d 1195, 1196.
Id.; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005); see Harrison v. Parker, 31, 844 (La.App. 2d Cir.5/5/99), 737 So.2d 160.Tucker v. Northeast Louisiana Tree Service, 27, 768 (La.App. 2d Cir.12/6/95), 665 So.2d 672; Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991). Here, LaPorte and Hof have provided contradictory sets of facts regarding FSW's reliance on LaPorte's 2013 and 2014 audit report, each supported by affidavits and deposition testimony. Courts must construe “all facts and inferences in the light most favorable to the nonmoving party, ” in this case Hof. Whether this evidence is enough to constitute LaPorte's negligence or to show its audit reports were a cause-in-fact of FSW losses is a disputed material fact to be resolved by the jury.
Id.; Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005); see Harrison v. Parker, 31, 844 (La.App. 2d Cir.5/5/99), 737 So.2d 160.Tucker v. Northeast Louisiana Tree Service, 27, 768 (La.App. 2d Cir.12/6/95), 665 So.2d 672; Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991). Louisiana courts have held that the issue of when accounting malpractice is discoverable is a question of fact.
Further, "[w]hen the employer seeks to avail itself of tort immunity under Section 1032, the employer has the burden of proving entitlement to immunity." Tucker v. Ne. Louisiana Tree Serv., 665 So. 2d 672, 677 (La. Ct. App. 2d Cir. 1995). An injury "arises out of" employment if an employee is more likely to encounter the injury-causing risk than is a member of the general public.
One relevant fact to consider is whether the employer has made a "prevailing practice" of transporting employees back and forth. Tucker v. Northeast Louisiana Tree Serv., 665 So.2d 672, 678 (La.Ct.App. 1995). If such trips are made irregularly, that suggests the employer is providing the service gratuitously.
Hubbard v. Jefferson Parish Parks and Recreation, 10–24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110.Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Penalber v. Blount, 550 So.2d 577 (La.1989); Greer v. Dresser Indus., Inc., 98–129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98–2094 (La.11/6/98), 728 So.2d 867; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96–63 (La.3/8/96), 669 So.2d 404. Subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Greer, 715 So.2d 1235; [ 7] Helwick v. Montgomery Ventures Ltd., 95–765 (La. App.
Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Penalber v. Blount, 550 So.2d 577 (La.1989); Greer v. Dresser Indus. Inc., 98–129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235,writ denied,98–2094 (La.11/6/98), 728 So.2d 867;Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672,writ denied,96–63 (La.3/8/96), 669 So.2d 404. Subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Greer, 715 So.2d 1235;Helwick v. Montgomery Ventures Ltd., 95–765 (La.App.
Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110. Even though summary judgment procedure is favored, it is not a substitute for trial and is rarely appropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Penalber v. Blount, 550 So.2d 577 (La. 1989); Greer v. Dresser Indus. Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, writ denied, 96-63 (La.3/8/96), 669 So.2d 404. Subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Greer, 715 So.2d 1235; Helwick v. Montgomery Ventures Ltd., 95-765 (La. App.
An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer's premises or at other places where employment activities take the employee. McLin, supra; Obein, supra; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App.2d Cir. 12/06/95), 665 So.2d 672, writ denied, 96-0063 (La.03/08/96), 669 So.2d 404. Our courts have recognized that employees may from time to time be asked by their employers to do things that are not necessarily within their regular job duties or descriptions.
Id. at 1170. Similarly, in Tucker v. Northeast Louisiana Tree Service, 27,768, p. 11 (La.App. 2 Cir. 12/6/95), 665 So.2d 672, 679, writ denied, 96-63 (La.3/8/96), 669 So.2d 404, a plaintiff was found not to be in the course and scope of his employment when the transportation provided by the employer was termed by the court a "gratuitous offer, the acceptance of which was not required." Thus, the transportation was not "an incident of employment[.]"