Appeals are favored in the law and should be maintained unless a legal ground for dismissal is clearly shown. 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; Reed v. Columbia/HCA Information Service, Inc., 99-1315 (La.App. 5th Cir. 4/25/00), 761 So.2d 625; Mack v. Evans, 33,823 (La.App. 2d Cir. 4/7/00), 756 So.2d 1270. An appeal is not to be dismissed for a mere technicality.
When affidavits and exhibits present a choice of reasonable inferences, such inferences must be viewed in the light most favorable to the party opposing the motion for summary judgment. 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). Brittain's Employment Discrimination Claim
The Steiers further assert that even after Fred Heller was advised that the move would be medically risky for Cindy Steier the Hellers still required that they vacate the house and offered only the shallow excuse that the house had to be ready to be put on the real estate market for spring. Contending that summary judgment was not appropriate the Steiers argue that a genuine issue of material fact exists as to whether the Hellers acted against morals good faith or elementary fairness and that this is a subjective determination which is not appropriate for disposition on summary judgment. Jurisprudence does provide that the summary judgment procedure is not suitable for disposition of cases requiring judicial determination of subjective facts such as motive intent or knowledge. Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2nd 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., 27,665 (La.App. 2nd Cir. 12/6/95) 665 So.2d 664, writ denied, 96-0058 (La. 2/28/96), 668 So.2d 372. However, disposition of the present case does not involve a subjective determination of the Hellers motive intent or knowledge in their exercise of the right to terminate the month-to-month lease by providing sixty days notice.
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.
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.
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.
Appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991); Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2nd Cir. 12/6/95), 665 So.2d 672. LSA-C.C.P. Art. 966 provides that a motion for summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. Collinsworth v. Foster, 28,671 (La.App. 2nd Cir. 9/25/96), 680 So.2d 1275. A fact is material if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery.
Generally, an employee who has an accident while traveling to and from work is not in the course and scope of employment and, thus, is not entitled to worker's compensation benefits. See Stephens v. Justiss-Mears Oil Co., 312 So.2d 293 (La. 1975); 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; writ not considered, 96-100 (La. 3/8/96), 669 So.2d 404; Dupre v. Exxon Pipeline Co., 93-1528 (La.App. 3 Cir. 6/1/94), 638 So.2d 1118, writ denied, 94-2200 (La. 11/18/94), 646 So.2d 379; Folse v. American Well Control, 536 So.2d 686 (La.App. 3 Cir. 1988), writ denied, 538 So.2d 592 (La. 1989). "This rule is premised on the theory that ordinarily the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work."
When affidavits and exhibits present a choice of reasonable inferences, such inferences must be viewed in the light most favorable to the party opposing the motion for summary judgment. 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).Id.; see also 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.
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.