On February 28, 2018, the Louisiana Fourth Circuit Court of Appeal in New Orleans ruled on a case in which it had to consider the factors for determining when a defendant driver is in the course and scope of employment. The case is a personal injury suit arising from a pick-up truck colliding with a Regional Transit Authority bus. The plaintiff, a passenger on the bus, filed the suit against multiple defendants, including the RTA, the truck driver, and the truck driver’s employer. The plaintiff was awarded $1,000,000 in damages in a verdict, but the trial court found the pick-up driver’s employer was not liable because the driver was not in the course and scope of employment. Over one dissent, the court of appeal agreed.

The defendant driver was on his way to work as an on-call anesthesiologist for an urgent appendectomy at Baptist Hospital in New Orleans when he collided with the bus. He then left the scene after exchanging information but before the police could question him because he urgently needed to report to work. To hold a driver’s employer vicariously liable, a plaintiff must show the driver was in the course and scope of employment.

The driver was in the process of going and coming to work, which according to the Louisiana Supreme Court’s decision in Orgeron v. McDonald, 93-1353, p. 4 (La. 7/5/94), 639 So.2d224, 227, would place him outside the course and scope of employment since it is difficult to decide when someone begins work if he is not on his employer’s premises. In Mclin v. Industrial Specialty Contractors., 02-1539 (La. 7/2/03), 851 So.2d 1135, the Louisiana Supreme Court enumerated some exceptions to this going and coming rule:

1. The accident happened on the employer’s premises;
2. The employer is deemed to be on a specific mission for the employer;
3. The employer provided transportation or reimbursed travel expenses;
4. The employee was doing work with the employer’s implied consent;
5. The employee was hurt while traveling to and from one work site to another;
6. The employee was injured in an area immediately adjacent to their place of employment;
7. The operation of a motor vehicle was the performance of one of the duties of the employment of the employee.

In a previous Fourth Circuit case, Matlock v. Hankel, 96-1838, p. 6 (La.App. 4 Cir. 2/11/98), 707 So.2d 1016, 1019, an emergency exception was made to the going and coming rule. Matlock was a volunteer firefighter on his way from his house to a fire riding in his personal vehicle. Since Matlock had all of his equipment for the job in his house which he brought with him, the courts decided that his home counted as his workplace due to the emergency nature of the trip. However, in the instant case, the defendant driver was not rushing to the hospital for an emergency procedure. He was called in to the hospital to get there urgently and in a timely manner, but he did not travel any differently than he would have during a normal commute. He merely left a little earlier than usual. The case is Johnson v. Transit Management of South East La. et al. 2017-0793 (La. 4 Cir. 2/28/2018), 239 So. 3d 973. The Louisiana Supreme Court denied writs, but two justices voted to hear the case.