AARON SHIPMAN v. MOUNTAIN LAKE RISK RETENTION GROUP INC ET AL (2026)

I concur in the majority's decision to deny the writ application. Although this case presents the issue of whether an employer may be held vicariously liable under La. C.C. art. 2315.4 for the acts of an intoxicated employee—an issue not yet addressed by this Court—it raises a more fundamental question that must first be resolved before this issue can be considered; namely, whether Gary Strong, an employee of U.S. Xpress, Inc., was in the course and scope of his employment at the time of the accident made subject of this lawsuit.

Vicarious liability arises from La. C.C. art. 2320, which imposes liability on employers “for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Jameson v. Montgomery, 22-01784, p. 7 n.7 (La. 5/5/23), 366 So. 3d 1210, 1216. The threshold question, thus, is whether an employee's conduct occurred in the course and scope of his employment. See J.L. v. Haymond, 25-0059, p. 4 (La. App. 4 Cir. 7/22/25), 418 So. 3d 512, 516.

Our case law reflects that “the scope of employment test examines the employment-related risk of injury” and “requires the trier of fact to determine whether the employee's tortious conduct was ‘so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests.’ ” Russell v. Noullet, 98-0816, p. 4 (La. 12/1/98), 721 So. 2d 868, 871 (citing LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974)). U.S. Xpress, Inc. maintains that Mr. Strong's conduct does not meet these criteria. It asserts that Mr. Strong was not in the course and scope of his employment, as his alleged act of driving while intoxicated is a clear violation of company policy.¹

In my view, there is no need to address the issue of U.S. Xpress, Inc.’s vicarious liability for exemplary damages under La. C.C. art. 2315.4 until the underlying course-and-scope issue has been resolved. Unless and until it is first established that Mr. Strong was in the course and scope of his employment at the time of the accident, a consideration of U.S. Xpress, Inc.’s liability for exemplary damages would be premature. In the event it is determined that Mr. Strong was not in the course and scope of his employment, that issue would be moot. For these reasons, the writ application is properly denied.

FOOTNOTES

1.   This issue was raised in writ application numbered 26-CC-0058, which sought review of the trial court's denial of U.S. Xpress, Inc.’s motion for summary judgment. This Court has simultaneously denied that writ application.

McCALLUM, J., concurs in the denial of the writ application and assigns reasons