Tucker v. Northeast Tree Ser.

28 Citing cases

  1. Kennedy v. Martin Gas

    680 So. 2d 1195 (La. Ct. App. 1996)   Cited 9 times
    In Kennedy v. Martin Gas Transp. Co., Inc., 96-100 (La.App. 3d Cir. 8/21/96), 680 So.2d 1195, writ denied, 96-2838 (La.1/24/97), 686 So.2d 860, the claimant was involved in an automobile accident approximately forty-five minutes after he had completed a mission for his employer.

    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."

  2. White v. St. Paul Fire

    685 So. 2d 335 (La. Ct. App. 1996)   Cited 1 times

    When the employer provides some type of transportation to the employee, the question is whether the employer has furnished transportation as an incident to employment, either through a vehicle or payment of expenses or where wages are paid for the time spent in traveling. Hebert v. Jeffery, 94-1230 (La.App. 1st Cir. 4/7/95); 653 So.2d 842,844; Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2nd Cir. 12/6/95), 665 So.2d 672, 677; Dupre v. Exxon Pipeline Co., 93-1528 (La.App. 3rd Cir. 6/1/94); 638 So.2d 1118, 1121; Leflore v. Coburn, 95-0690 (La.App. 4th Cir. 12/28/95); 665 So.2d 1323. See also: Malone and Johnson, Louisiana Civil Law Treatise, Worker's Compensation, Sec. 170, at 392 (1994).

  3. 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.

  4. Keith v. Gelco Corp.

    705 So. 2d 244 (La. Ct. App. 1997)   Cited 15 times
    In Keith, employees brought a personal injury action against their employer after they were involved in an accident traveling home from a worksite in a vehicle owned by their employer.

    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.

  5. Scott v. Smith

    714 So. 2d 7 (La. Ct. App. 1998)   Cited 4 times

    As a general rule, an accident which occurs while an employee is traveling to and from work is not considered as having occurred during the course and scope of employment. Mundy, supra; 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, writ not considered, 96-0100 (La. 3/8/96), 669 So.2d 404; Keith, supra. However, there are instances where exceptions to this rule have been recognized.

  6. Steier v. Heller

    732 So. 2d 787 (La. Ct. App. 1999)   Cited 26 times

    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.

  7. 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.

  8. Webb v. SEP, Inc.

    752 So. 2d 881 (La. Ct. App. 1999)   Cited 3 times
    In Webb v. SEP, Inc., 31,946 (La.App. 2nd Cir. 5/5/99), we acknowledged the statement from White that proof of the temporal element is "not an impossible burden;" however, we also observed that such proof "appears to be an onerous burden for the claimant to meet."

    Also, where affidavits and exhibits present a choice of reasonable inferences, such inferences must be viewed in the light most favorable to the party opposing summary judgment. 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; Coleman v. Sheraton Pierremont, 25,452 (La.App. 2nd Cir. 1/19/94), 631 So.2d 50. Here, it is evident that the majority weighed the evidence and determined that the fall was caused by Ms. Webb's own actions rather then by the presence of the water on the floor.

  9. Alexander v. Hall

    759 So. 2d 908 (La. Ct. App. 2000)

    The principal criteria for determining course of employment cases are time, place, and employment activity. Tucker v. Northeast Louisiana Tree Service, 27,768 (La.App. 2 Cir. 12/6/95); 665 So.2d 672, writ denied and writ not considered, 96-0063, 96-0100; (La. 3/8/96); 669 So.2d 404. None of these criteria are met in the present case. This accident did not happen while Alexander was going to and from work, nor was he on his lunch hour.

  10. Phipps v. Bruno Const.

    773 So. 2d 826 (La. Ct. App. 2000)   Cited 13 times

    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."