CARLOS SANCHEZ AND YAZMIN GARZA DE SANCHEZ INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN CARLOS SANCHEZ JR AND CARLA CAMILA SANCHEZ v. PAUL JANTZEN AMERICAN AIR LIQUIDE INC AIRGAS USA LLC AND STARR INDEMNITY AND LIABILITY COMPANY (2026)

In this personal injury suit arising from a vehicular accident, the plaintiffs appeal a summary judgment dismissing their claims against the defendant driver's employer. The trial court determined the employer was not vicariously liable for its employee's alleged tort, because the employee was not in the course of scope of his employment at the time of the accident. After de novo review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 5:30 p.m. on Tuesday, February 22, 2022, Paul Jantzen left his job as facility manager at an Air Liquide plant on Evergreen Road in Plaquemine, Louisiana, and was on his way to his home in Prairieville, Louisiana. At the time, Mr. Jantzen was driving a company-issued truck because his personal vehicle was out of commission. When Mr. Jantzen approached the intersection of Evergreen Road and La. Hwy. 1, he was behind a truck being driven by Carlos Sanchez. When Mr. Sanchez turned right into an acceleration lane heading north on La. Hwy. 1, Mr. Jantzen proceeded behind him in the same direction and rear-ended Mr. Sanchez's truck. Lieutenant Travis Hebert with the Iberville Parish Sheriff's Office responded to the scene, took statements from both drivers, but issued no citations. From the accident scene, Mr. Jantzen drove to a nearby gas station, telephoned Air Liquide personnel to report the accident, and then drove home.

On January 31, 2023, Carlos and Yazmin Sanchez, individually, and on behalf of their two minor children, Carlos Sanchez, Jr. and Carla Camila Sanchez (the Plaintiffs), filed a petition for damages against Mr. Jantzen and three other defendants. The Plaintiffs later amended their petition to identify the defendants as Mr. Jantzen; his employer, Air Liquide Large Industries U.S., LP (Air Liquide); and Starr Indemnity and Liability Company (Starr). Mr. Jantzen and Starr filed an answer to the petition. Air Liquide separately filed an answer and then, later, an amended and supplemental answer.

After discovery, Air Liquide filed a motion for summary judgment, contending it was not vicariously liable for Mr. Jantzen's alleged tort, because Mr. Jantzen was not in the course and scope of his employment at the time of the accident. The Plaintiffs opposed the motion. After a hearing, the trial court signed a judgment on August 6, 2025, granting Air Liquide's motion, dismissing the Plaintiffs’ claims against Air Liquide with prejudice, and noting that their claims against Mr. Jantzen and Starr remained. The Plaintiffs appeal from the adverse judgment.

In a single assignment of error, the Plaintiffs contend the trial court erred in dismissing their claims against Air Liquide based on its conclusion that Mr. Jantzen was not in the course and scope of his employment when he rear-ended Mr. Sanchez.¹

SUMMARY JUDGMENT

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The burden then shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See Id.; Liberty Mutual Fire Insurance Company v. Harris, 2022-0429 (La. App. 1 Cir. 11/4/22), 355 So.3d 628, 633, writ denied, 2022-01747 (La. 2/7/23), 354 So.3d 671. Although the court must construe reasonable factual inferences drawn from the evidence in favor of the summary judgment opponent, mere conclusory allegations, improbable inferences, and unsupported speculation will not create a genuine issue of material fact. Guillory v. The Chimes, 2017-0479 (La. App. 1 Cir. 12/21/17), 240 So.3d 193, 195.

An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Awanbor v. Williams, 2025-0054 (La. App. 1 Cir. 8/4/25), 418 So.3d 1043, 1048, writ denied, 2025-01124 (La. 11/12/25), 420 So.3d 708. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id. at 1049.

VICARIOUS LIABILITY AND THE “COMING AND GOING” RULE

The applicable law herein is found in Louisiana Civil Code article 2320, which pertinently provides that an employer is answerable for the damage occasioned by its employee in the exercise of the functions in which he is employed. In other words, an employer is vicariously liable for its employee's tort if, at the time, the employee was acting within the course and scope of his employment. See Orgeron v. McDonald, 1993-1353 (La. 7/5/94), 639 So.2d 224, 226.² As recently confirmed by the Louisiana Supreme Court, as well as by this Court, an employee's commute to and from work is generally considered outside the course and scope of his employment. Lacy v. Ibarra, 2025-01599 (La. 4/21/26), 431 So.3d 1176, 1180 (per curiam); Awanbor, 418 So.3d at 1050. However, jurisprudence recognizes exceptions to this general “coming and going” rule. Lacy, 431 So.3d at 1180. Under these exceptions, an employee may be in the course and scope of employment when traveling to and from work under certain circumstances, where: the employer provides the transportation to commute to work; the employer provides wages or expenses for the time the employee spends traveling; or the operation of the vehicle is incidental to the performance of some employment responsibility. Id.

Notably, as to the first above listed exception, there is a rebuttable presumption that an employee driving a company vehicle is within the course and scope of his employment. Johnson v. C's Transportation Services, Inc., 2020-0338 (La. App. 1 Cir. 8/4/21), 2021 WL 3418693, *2. However, an employee's use of a company vehicle does not give rise to vicarious liability where the employee's trip is personal. Latour v. Brock, 2023-00262 (La. 6/21/23), 362 So.3d 405, 409 (per curiam); Johnson, 2021 WL 3418693 at *3-4. The party asserting an exception to the “coming and going” rule has the burden of proving the exception. See Orgeron v. McDonald, 618 So.2d 1041, 1043-44 (La. App. 1 Cir. 1993), rev'd on other grds, 639 So.2d 224, 228-29 (La. 7/5/94).

ANALYSIS

As the mover on the motion for summary judgment, Air Liquide has the burden of proving that no genuine issue of material fact exist and that it is entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1). In support of its motion for summary judgment, Air Liquide argues that there is an absence of factual support for the Plaintiffs’ claim that Mr. Jantzen was in the course and scope of his employment when the accident occurred. With its motion, Air Liquide filed an excerpt from Mr. Jantzen's deposition, wherein he stated that, when the accident occurred, he was leaving the Air Liquide plant and was going to his home in Prairieville. When asked if he was “off for the day” and “off the clock,” Mr. Jantzen responded, “Yes.” When asked what he was going to do when he got home, Mr. Jantzen said “[n]ot be at work.” He planned to take the evening off and return to work the next day. Mr. Jantzen confirmed he was driving a company-issued truck when the accident occurred. And, although he had a company-issued cell phone, he stated he was not talking or texting on it when the accident occurred.

According to Mr. Jantzen's deposition testimony, as he approached the Evergreen Road/La. Hwy 1 intersection, he saw Mr. Sanchez's truck directly in front of him at the stop sign. After Mr. Sanchez turned right onto an acceleration lane to merge onto La. Hwy. 1, Mr. Jantzen approached the intersection and also turned right. He began to accelerate, looked to his left to check his blind spot, and when he looked forward again, Mr. Sanchez “slammed on his brakes,” and Mr. Jantzen struck the rear of Mr. Sanchez's truck. Mr. Jantzen stated that he was driving at five miles per hour or less when he hit Mr. Sanchez and his airbags did not deploy. The drivers exited their vehicles, neither appeared injured, and Mr. Sanchez called to have a police officer dispatched. When Lt. Hebert arrived, he took statements from both drivers. Mr. Sanchez thereafter drove to a nearby gas station, called to report the accident to Air Liquide personnel, and then drove home.

In opposition to Air Liquide's motion, the Plaintiffs filed Lt. Hebert's deposition with attached exhibits, including his accident report ³ and photographs of the accident; Mr. Jantzen's deposition and attached exhibits; Mr. Jantzen and Starr's discovery responses; and Air Liquide's discovery responses. In support of their argument that there are genuine issues of material fact as to whether Mr. Jantzen was in the course and scope of his employment at the time of the accident, the Plaintiffs point to Mr. Jantzen's testimony that: his use of the company-issued truck was a “perk” of his employment; he was the facility manager of two Air Liquide plants - one in Plaquemine and one in the nearby town of Addis; he was a salaried employee with no set work hours; was expected to answer his company-issued cell phone at all times; and was expected by Air Liquide to prioritize safety, which included a “duty to go home and rest because fatigue management was critically important for plant safety.”

On de novo review, we must determine if the summary judgment evidence shows there are genuine issues of material fact as to the course and scope inquiry. We first address the Lacy exceptions that allow a court to find an employee in the course and scope of employment when he is “coming and going” in an employer-issued vehicle or when his operation of the vehicle is incidental to an employment responsibility. See Lacy, 431 So.3d at 1180.

Although driving the company-issued truck was a “perk” of Mr. Jantzen's employment, such does not give rise to vicarious liability where the employee's trip is personal. Latour, 362 So.3d at 409. There is no evidence that Mr. Jantzen was going anywhere but home, and we reject the Plaintiffs’ speculative and unsupported argument that he could have instead been driving from Air Liquide's Plaquemine plant to its Addis plant with some work-related purpose. See Guillory, 240 So.3d at 197 (rejecting an argument based on speculation rather than on fact). And, while Mr. Jantzen was a salaried employee, with no set work hours, and always expected to answer his company-issued cell phone, these facts do not make his commute home on the day of the accident incidental to an employment responsibility. On-call accessibility or availability of an employee does not transform his private activity into company business and does not automatically make his employer liable for his torts. Awanbor, 418 So.3d at 1055 (internal citations omitted); McClendon v. Edens, 2021-0894 (La. App. 1 Cir. 3/17/22), 2022 WL 807959, writ denied, 2022-00634 (La. 6/8/22), 338 So.3d 197; see Liberty Mutual, 355 So.3d at 637. Rather, an employee's on-call status is but one factor used to determine whether the employee was acting within the course and scope of his employment at the time of the accident. Johnson, 2021 WL 3418693 at *2. Here, the Plaintiffs argue, but have produced no material factual evidence, that Mr. Jantzen's on-call status at the time of the accident made his commute work-related. Even accepting the Plaintiffs’ argument that Air Liquide “controlled” Mr. Jantzen and could summon him to work duties at any time, there is no evidence that he had a work-related service or task to perform while en route to his home on the day of the accident.

The Plaintiffs also argue that, because Air Liquide prioritized safety and expected Mr. Jantzen to go home and rest as needed, his commute home to do so was a “work task.” In support of this argument, the Plaintiffs reference Mr. Jantzen's deposition testimony wherein he stated that “fatigue management is very important for safety, so [my employees and I] adhere to that.” We acknowledge that any employer presumably benefits from an employee who is rested and fatigue-free, especially a facility manager whose employer might require that he be readily available to address work-related issues. However, in short, including a commute home to rest as a “work task” and within the course and scope of an employee's duties would remove manageable boundaries from the course and scope determination. See Lacy, 431 So.3d at 1180, quoting Orgeron, 639 So.2d at 227. We reject the Plaintiffs’ contrary argument on this issue.

Turning to the exception for employer-provided travel compensation or expense reimbursement, we likewise find the exception inapplicable. Generally, under this exception, an employer's payment of travel expenses can, in some circumstances, place an employee in employment status from the beginning of his trip until the end. See Michaieski v. Western Preferred Cas. Co., 472 So.2d 18, 20 (La. 1985). Here, when describing his use of the company-issued truck, Mr. Jantzen briefly noted that, under certain circumstances, Air Liquide allowed an employee to use a company-issued vehicle for personal use and the employee would “declare personal mileage.” The Plaintiffs argue that there is no evidence that Mr. Jantzen declared personal mileage for his commute home on the day of the accident, and as such, it must be inferred that Mr. Jantzen's commute home on the day of the accident was not personal, but was instead work-related. We disagree. Mr. Jantzen's general and isolated reference to declaring mileage for the personal use of an Air Liquide vehicle does not factually show that Air Liquide actually provided travel compensation or expense reimbursement to him or any other Air Liquide employee for work-related travel. At a minimum, the actual payment of mileage to an employee is one of the necessary requirements to impose vicarious liability on his employer. Lacy, 431 So.3d at 1184. No such evidence exists here, and we decline to make any inference from this or any other lack of evidence. See Bova v. Butler, 2014-0765 (La. App. 1 Cir. 12/23/14), 168 So.3d 551, 555, writ denied, 2015-0172 (La. 4/17/15), 168 So.3d 398.

After de novo review of the summary judgment evidence, we conclude Air Liquide has shown an absence of factual support for the Plaintiffs’ claim that Mr. Jantzen was in the course and scope of his employment when the accident occurred - an essential element of the Plaintiffs’ vicarious liability claim against Air Liquide. See La. C.C.P. art. 966(D)(1). Rather, we find the summary judgment evidence shows Mr. Jantzen was simply going home from work when the accident occurred, and the Plaintiffs have failed to produce support to establish a factual dispute as to the whether one or more of the exceptions to the “coming and going” rule applies herein. See Lacy, 431 So.3d at 1185-86; Orgeron, 618 So.2d at 1043-44. The summary judgment motion, memoranda, and supporting documents show that Air Liquide is not vicariously liable for Mr. Jantzen's alleged tort, because he was not in the course and scope of his employment when he rear-ended Mr. Sanchez. Air Liquide presented evidence sufficient to meet its burden of establishing that no genuine issue of material fact exists and that it was entitled to summary judgment as a matter of law.

CONCLUSION

For the foregoing reasons, we affirm the August 6, 2025 summary judgment, in favor of Air Liquide Large Industries U.S., LP, which dismissed the claims of Carlos and Yazmin Sanchez, individually, and on behalf of their minor children, Carlos Sanchez, Jr., and Carla Camila Sanchez, with prejudice. We assess appeal costs to Carlos and Yazmin Sanchez.

AFFIRMED.

FOOTNOTES

1.   In their appellate reply brief, the Plaintiffs argue for the first time that Air Liquide is not entitled to summary judgment, because, in its original answer, Air Liquide judicially confessed that Mr. Jantzen was in the course and scope of his employment when the accident occurred. A judicial confession, which constitutes full proof against the party who made it, is a declaration made in a judicial proceeding acknowledging an adverse fact. La. C.C. art. 1853; Craft o/b/o Craft v. Ogunbor, 2023-0084 (La. App. 1 Cir. 11/9/23), 2023 WL 7410625, *3, writ denied, 2023-01599 (La. 2/6/24), 378 So.3d 755. First, the course and scope issue is not just a factual issue, but is a mixed question of fact and law, which we find is not a matter suitable for judicial confession. See Dean v. Southmark Construction, 2003-1051 (La. 7/6/04), 879 So.2d 112, 117. Further, a declaration constitutes a judicial confession only if the adverse party believes the relevant fact is no longer at issue or if he detrimentally relied on the declaration. Id. The record shows that neither is true herein. In opposition to Air Liquide's motion for summary judgment, the Plaintiffs have zealously litigated the course and scope issue in both the trial court and now on appeal. By doing so, the Plaintiffs have clearly demonstrated a belief that the course and scope issue - in fact, the only issue raised by Air Liquide's motion and in this appeal - remains at issue.

2.   An employer's vicarious liability for its employee's torts, also known as respondeat superior, is based on the deep-rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents that are fairly characteristic of its activities. See, generally, La. Prac. Series, Louisiana Employment Law § 14:3 - Vicarious liability under respondeat superior theory.

3.   The Plaintiffs point to Lt. Hebert's deposition and accident report as evidence that Mr. Jantzen's later version of the accident and Air Liquide's version of the accident are different than the version Mr. Jantzen told Lt. Hebert on the day of the accident. We first note that a police investigative report contains hearsay and is inadmissible. See La. C.E. art. 803(8)(b)(i)-(iv); Shelton v. Landstar Ranger, Inc., 224-1237 (La. App. 1 Cir. 6/20/25), 418 So.3d 1,6. While attaching the accident report to the officer's deposition may authenticate the report, coupling the accident report with the deposition does not convert the document - or the facts contained therein - from hearsay to statements made on personal knowledge as required by La. C.C.P. art. 967(A) such that they would be admissible. Id. Thus, simply attaching an accident report to the officer's deposition does not make the accident report proper summary judgment evidence. Id. Nevertheless, in this case, it is undisputed that Mr. Jantzen rear-ended Mr. Sanchez. Any discrepancy as to whether the accident occurred before, during, or after the drivers turned onto the La. Hwy. 1 acceleration lane does not create a genuine issue as to a “material” fact herein.

GREENE, J.