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A year and half ago I wrote a blog post about a tactic defense attorneys have been using to convince courts to dismiss a plaintiff’s independent negligence claims against an employer (e.g., for negligent hiring, negligent training, negligent entrustment) if the employer admitted to “course and scope” (i.e., to the vicarious nature of any liability assigned to the employee). The theory pushed by defense counsel was that plaintiff’s direct negligence claims against an employer are “subsumed” in plaintiff’s direct negligence claims against the employee (usually a truck driver) when the employer admits to “course and scope.”
The Supreme Court issued an opinion in Martin v. Thomas yesterday completely repudiating this argument, holding that a plaintiff can maintain both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury. See Martin, 21-1490 at p. 1.
This is a direct repudiation of dozens and dozens of federal cases (beginning with Dennis v. Collins out of the Western District of Louisiana) which stood for the proposition that a plaintiff’s direct negligence claims against an employer are "subsumed" by his claims against the employee once course and scope are admitted. See Dennis v. Collins, Civil Action No. 15-2410 (W.D.La. Nov. 9, 2016), 2016 WL 6637973. The Louisiana Supreme Court very clearly rejected Dennis and its progeny yesterday:
At issue in this motion for partial summary judgment is whether a plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury. We hold that a plaintiff can maintain both claims even if the employer has stipulated to the course and scope of employment. We therefore reverse the partial summary judgment in favor of the employer which dismissed the claims asserted directly against it, and remand to the district court.
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It is possible that an employer and an employee may both be assigned a percentage of fault, depending on the facts. An employer will still be financially responsible for an employee’s percentage of fault if the employee was in the course and scope of employment. The initial assessment of fault required by the law is not bypassed due to the employer-employee relationship.
Martin, 21-1490, pp. 1, 11.
So, what now?
Well, (1) if you have a case in which partial summary judgment was granted dismissing your client’s direct negligence claims on this basis, (2) if that judgment was not designated a final judgment under La. C.C.P. art. 1915(B) with an express determination that there is no just reason for delay, and (3) if a final judgment adjudicating all claims has not been rendered in your case, then you can file a motion to have the judgment granting partial summary judgment vacated and to have your direct negligence claims reinstated.
Check your judgment closely. What looks like a final judgment might not be. If a judgment referenced La. C.C.P. art. 1915(B) but makes no “express determination that there was no just reason for delay,” the judgment is not final under art. 1915(B). If it’s not final, then it's an interlocutory judgment, which can be vacated at any time:
Partial judgments, including partial summary judgments, are governed by La. C.C.P. art. 1915.3 When a court renders a partial judgment as to less than all of the claims, demands, issues, or theories against a party, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination there is no just reason for delay. La. C.C.P. art. 1915(B)(1). “In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La. C.C.P. art. 1915(B)(2). Thus, it is “well-settled that prior to final judgment a [trial court] may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous.” Vasalle v. Wal-Mart Stores, Inc., 01-0462, p. 5 (La. 11/28/01), 801 So.3d 331, 334.
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The plain language of La. C.C.P. art. 1915(B)(2) provides that, absent determination and designation as a final judgment, a partial summary judgment adjudicating less than all of the claims at issue “may be revised at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” See La. C.C. art. 9; Louisiana Mun. Ass'n v. State, 04-0227, p. 35 (La. 1/19/05), 893 So.2d 809, 836-37 (“interpretation of a statute starts with the language of the statute itself”); Vasalle, 01-0462, p. 5, 801 So.2d at 334.
Zapata v. Seal, 20-01148 (La. 9/30/21), 330 So. 3d 175, 178-79 (affirming district court’s judgment granting a motion to vacate judgment granting partial summary judgment).
I drafted my first motion to vacate judgment in light of Martin v. Thomas today. If you have one of these cases, give me a shout. I’m happy to share my research!
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