Tucker v. Northeast Tree Ser.

2 Citing cases

  1. Bolton v. Tulane Univ.

    692 So. 2d 1113 (La. Ct. App. 1997)   Cited 18 times

    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.

  2. Oaks v. Dupuy

    740 So. 2d 263 (La. Ct. App. 1999)   Cited 26 times
    In Oaks v. Dupuy, 32,070 (La.App. 2 Cir. 8/18/99), 740 So.2d 263, writ not considered, 1999-2729 (La. 11/24/99), 750 So.2d 993, a negligent entrustment case involving a drunk driver, a panel from this court reversed a summary judgment in favor of the defendant dismissing the claim and holding that there remained a material issue of fact as to the owner's knowledge of his son's competency as a driver.

    Art. 966 C (2). Even though summary judgment procedure is favored, it is not a substitute for trial and is often inappropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Greer v. Dresser Indus. Inc., 98-129 (La.App. 3d Cir. 7/1/98), 715 So.2d 1235, writ denied 98-2094 (La. 11/6/98), 728 So.2d 867; Smith v. Our Lady of the Lake Hosp. Inc., 93-2512 (La. 7/5/94), 639 So.2d 730; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2d Cir. 12/6/95), 665 So.2d 672, writ denied 96-0063 (La. 3/8/96), 669 So.2d 404; Bailey v. United Gas Pipe Line Co., 27,655 (La.App. 2d Cir. 12/6/95), 665 So.2d 664, writ denied 96-0058 (La. 2/28/96), 668 So.2d 372. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Helwick v. Montgomery Ventures Ltd., 95-0765 (La.App. 4th Cir. 12/14/95), 665 So.2d 1303, 1306, writ denied 96-0175 (La. 3/15/96), 669 So.2d 424. Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial court's grant of the judgment.