IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 96-31281
__________________________
MOSES COOPER &
LOUISE COOPER,
Plaintiff-Appellant,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Middle District of Louisiana
(No. 95-811)
___________________________________________________
June 11, 1998
Before WIENER, EMILIO M. GARZA,* and BENAVIDES, Circuit Judges.
PER CURIAM:**
Plaintiffs-Appellants Moses Cooper and Louise B. Cooper,
husband and wife (the Coopers), appeal the district court’s grant
of judgment as a matter of law (j.m.l.) in favor of Defendant-
Appellee Wal-Mart Stores, Inc. (Wal-Mart) on their personal injury
claims. The Coopers brought suit after Mr. Cooper tripped while
*
Concurring in the judgment only.
**
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
passing through an exit aisle occupied by a Wal-Mart employee who
was purchasing a bicycle. Claiming that the employee pushed the
bicycle in Mr. Cooper’s path, causing him to fall and sustain
injuries, the Coopers sought to hold Wal-Mart (a) vicariously
liable for the employee’s negligence and (b) independently liable
for its own negligence. At the close of the Coopers’ case, Wal-
Mart orally moved for j.m.l. on the ground that the employee’s
actions in purchasing the bicycle were not taken in the course and
scope of her employment; consequently, the Coopers had not made out
a case of respondeat superior as a matter of law. The court
granted the motion and the Coopers took this appeal from the
district court’s order dismissing their claims with prejudice.
They contend that the magistrate judge (a) misapplied Louisiana
law, and (b) improperly weighed the evidence adduced at trial. The
Coopers also contend that the court erred in dismissing their
direct negligence claim against Wal-Mart as it did not move for
j.m.l. on that claim. Finding no merit in the Coopers’ position,
we affirm.
I
FACTS AND PROCEEDINGS
The Coopers went to the Wal-Mart pharmacy to purchase insulin
for Mr. Cooper’s diabetic condition. Realizing that they did not
have enough money to pay for the medicine, they attempted to leave
the store through an aisle between the customer service desk and a
cash register. Mrs. Cooper testified that two customers were
2
standing at the cash register waiting to “check out” and two Wal-
Mart employees were standing at the service desk. One of the
employees, Emma Deggs, was purchasing a small bicycle for her
daughter. The other employee, Gloria Germany, was obtaining a
“price check” for a customer. According to Mrs. Cooper, Deggs and
Germany were engaged in a conversation about the bicycle as the
Coopers approached the aisle.
Mrs. Cooper stated that, just as she was passing the register
and speaking to Germany about the bicycle, Deggs pushed it into Mr.
Cooper’s path by “fooling with” some tags on the bike’s handlebars.
Mr. Cooper, who had been following his wife, tripped and fell over
the bike’s training wheels, injuring his right knee. The store’s
assistant manager, David Bayhem, was notified of the accident and
helped Mr. Cooper up off the floor. He did not offer to assist the
Coopers in obtaining medical treatment. Mrs. Cooper further
testified that Deggs picked the bike up and moved it closer to the
service desk following the accident.
The Coopers proceeded to a nearby emergency room where a
physician examined Mr. Cooper’s knee, gave him some pain
medication, and recommended that he seek additional treatment from
his primary care physician. Mr. Cooper subsequently underwent knee
surgery, which required several months of additional treatment and
recuperation.
The Coopers filed suit in state court, contending that Wal-
Mart was both independently and vicariously liable for Mr. Cooper’s
3
injury. Wal-Mart removed the case to federal court, predicating
federal jurisdiction on diversity of citizenship, and the matter
proceeded to trial before a magistrate judge pursuant to the
district judge’s Order of Reference. At the close of the Cooper’s
case, Wal-Mart orally moved for j.m.l. under Rule 50(a) of the
Federal Rules of Civil Procedure on the following ground:
There is no basis . . . for this case to go to
the jury on the issue of Wal-Mart’s liability
on the theory that has been advanced . . . by
plaintiff, that is, that an employee in the
course and scope of their employment undertook
some activity that was negligent that caused
the plaintiff harm.”
In support of its motion, Wal-Mart argued that Deggs —— the
only employee alleged to have been responsible for the accident ——
purchased the bicycle during her lunch break, after “clocking out”
her time card. According to Wal-Mart’s time clock activity report,
Deggs clocked out for lunch at 12:12 p.m. on the day of the
incident. In his accident investigation report, Bayhem determined
that Mr. Cooper’s fall occurred at 12:20 p.m. Because Deggs was
off duty, urged Wal-Mart, she could not have been acting in the
course and scope of her employment when she was purchasing the
bike.
The Coopers responded by arguing that Deggs’s off-duty status
did not preclude a course and scope of employment finding. Her
off-duty status, urged the Coopers, was a function of Wal-Mart’s
employee discount program. Wal-Mart requires its employees to
clock out before making purchases under the program. Thus, the
4
fact that Deggs had clocked out did not indicate that she was on a
personal errand; she was simply complying with company policy.
And, continued the Coopers, because that policy induces employee
purchases, which in turn benefits Wal-Mart by increasing its sales,
employee action of the type here at issue is taken in furtherance
of Wal-Mart’s business. Any negligence associated with such
action, urged the Coopers, should therefore be attributable to Wal-
Mart.
The magistrate judge rejected the Coopers’ position and
granted the motion, finding that because Deggs had clocked out
prior to making her purchase, she was acting in the capacity of a
customer rather than as an employee. As such, Wal-Mart could not
be held liable under the theory of respondeat superior. The court
reasoned that discount-induced employee purchases are not
sufficiently intertwined with a Wal-Mart employee’s job duties as
to be considered in the course and scope of Wal-Mart employment;
any benefit Wal-Mart derives from the program is indirect. In
fact, Wal-Mart’s off-the-clock policy, rather than indicating a
connection with employment duties, suggests that employee purchases
are to remain distinct from job performance. The Coopers timely
appealed.
II
ANALYSIS
A. STANDARD OF REVIEW
We review a motion for j.m.l. de novo, applying the same legal
5
standard as did the trial court.1 In evaluating such a motion, we
view the entire trial record in the light most favorable to the
non-movant, and draw all inferences in its favor.2 If the evidence
at trial points so strongly and overwhelmingly in the movant’s
favor that reasonable jurors could not reach a contrary conclusion,
we will conclude that the motion should have been granted.3 The
“decision to grant [j.m.l.] . . . is not a matter of discretion,
but a conclusion of law based upon a finding that there is
insufficient evidence to create a fact question for the jury.”4
B. EXISTENCE OF MATERIAL FACT ISSUES
The Coopers argue that the magistrate judge improperly made
factual findings in entering a judgment against them on their
vicarious liability claim. Specifically, they insist, the court
erred in determining that (1) Deggs was the employee that tripped
Mr. Cooper, and (2) she was off duty when she purchased the bike.
The Coopers contend that the court’s finding that Deggs was the
employee who tripped Mr. Cooper improperly foreclosed an inquiry
into the actions of other employees, which actions could have
satisfied the course and scope of employment predicate for Wal-
1
Omnitech Int’l, Inc. v. The Clorox Co., 11 F.3d 1316, 1322-23
(5th Cir. 1994).
2
Id. at 1323.
3
Id.
4
Id. (quoting In re Letterman Bros. Energy Sec. Litig., 799
F.2d 967, 972 (5th Cir.1986)).
6
Mart’s vicarious liability.5 Likewise, contend the Coopers, the
court’s determination that Deggs was off duty similarly impeded
their ability to establish that the tortious conduct in question
occurred in the course and scope of Deggs’s Wal-Mart employment.
In support of their contention that a factual dispute over the
responsible employee’s identity existed at trial, the Coopers
invite our attention to evidence that: (1) Deggs disavowed any
knowledge of the accident, claiming that she purchased the bike and
left the store without incident, (2) Mr. Cooper testified that
Germany was the employee at fault, and (3) Bayhem testified that
Deggs was not present when he arrived at the accident scene.
With respect to Deggs’s on/off-duty status, the Coopers
suggest that the time line created by the evidence adduced at trial
contradicts Bayhem’s 12:20 p.m. estimate of the accident time. The
Coopers derive a contradiction from the facts that (1) emergency
room records indicate that the Coopers arrived for treatment at
12:38 p.m. —— a “mere” difference of eighteen minutes —— and (2)
Deggs testified that it took her fifteen minutes to purchase the
bike. From these fact, the Coopers infer that Deggs attempted to
purchase the bike before clocking out at 12:12 p.m. Moreover, note
the Coopers, Mrs. Cooper testified that the accident occurred at
noon, directly contradicting Bayhem’s testimony.
Our review of the record reveals that the Coopers have
5
See infra notes 8-9 and accompanying text.
7
advanced these purported evidentiary conflicts disingenuously,
“cherry picking” favorable excerpts from witness testimony and at
times flatly mischaracterizing the evidence. Indeed, the Coopers
have changed their theory of the case on appeal in an apparent
hindsight effort to conjure up material questions of fact worthy of
a jury’s consideration where none exist.
From the outset of their case, the Coopers made it clear that
their focus was exclusively on Deggs’s conduct. In their opening
statement they announced to the jury: “We believe that the evidence
will demonstrate clearly that [Deggs], unfortunately, negligently,
and carelessly, moved this bicycle into [Mr. Cooper’s] passageway
[sic] and caused him to fall and get hurt.” The Coopers never
expressed doubt as to the identity of the responsible employee.
And when Wal-Mart’s motion for j.m.l. was argued, the Coopers did
not attempt to defeat the motion by suggesting that material
questions of fact surrounded the identity of the culpable employee
so that, as a result, deciding the case as a matter if law would be
inappropriate.
But the Coopers now seize on Mr. Cooper’s testimony that
Germany —— the Wal-Mart employee who was obtaining a price check at
the service desk —— was the bike-pushing culprit. It is clear,
from Mr. Cooper’s remaining testimony, however, that he had
forgotten or was otherwise uncertain of the employee’s name but at
all times believed that the employee purchasing the bike (Deggs)
8
was the party at fault.6 Moreover, Mrs. Cooper testified
6
Mr. Cooper originally testified, albeit with some
reservation, that Germany moved the bike into his path:
Q: All right. Was the lady —— who was handling the —— who
moved the bicycle?
A: I believe that was —— let me see. I think that was
[Germany].
His subsequent testimony, however, makes it clear that he intended
to identify Deggs:
A: I was going out the store to go get some money, but the
lady that were buying the bicycle, when I got close, the bike
trying to move back right in front of me. My feet got tangled up
in the back wheel. I just went on over with it.
* * *
Q: [On cross-examination:] Mr. Cooper ——
A: Yeah.
Q: —— the lady that had ——
A: The bicycle.
Q: —— the bicycle ——
A: Yeah.
Q: —— as you were walking out ——
A: I was walking out.
Q: —— were you passing in front of her or behind her?
A: Behind her.
Q: Okay. And she had her back to you as you were walking ——
A: Yeah.
Q: —— out, is that fair?
A: Yeah, and she was fooling with the bicycle taking
9
unequivocally that Deggs was responsible. And, although Deggs
denied any involvement in the accident and Bayhem claimed that she
was absent from the scene, such testimony merely called the
credibility of those witnesses into question rather than creating
a fact issue.
Likewise, the Coopers have made the question of Deggs’s on-
duty status an issue for the first time on appeal. In defending
against Wal-Mart’s j.m.l. motion in the district court, the Coopers
conceded that Deggs was off the clock when the accident occurred
but argued that this fact was not dispositive. Furthermore, in
lifting snippets of evidence from the record on a heretofore
uncontested issue, the Coopers have mischaracterized witness
testimony. They claim that Mrs. Cooper testified that the accident
took place at 12:00 p.m. when, in reality, the record is clear that
she testified that the incident occurred at “about twelve o’clock.”
As such, her testimony does not contradict Bayhem’s 12:20 p.m.
estimate.
The Coopers also fail to present in an accurate light Deggs’s
testimony concerning the amount of time it took her to purchase the
bicycle. Although she had previously estimated a fifteen-minute
interval, she had done so with the caveat that she could not
something off the bike and the bike went to ——
* * *
10
remember the time frame. Moreover, she had also previously given
a five-to-ten-minute estimate. At trial, Deggs was asked which
estimate was more accurate and she responded that it took her no
longer than five to ten minutes to purchase the bike. In addition,
without evidence of the emergency room’s location —— and there is
none in the record —— no contradictory inferences can be drawn from
the eighteen minute interval between the putative 12:20 p.m.
accident time and the Coopers’ 12:38 p.m. emergency room arrival.
Our review of the entire record leads to the conclusion that
no material questions of fact existed with respect to these issues.
Our conclusion is bolstered by the Coopers’ failure to insist
otherwise at trial.
C. VICARIOUS LIABILITY
The concept of vicarious liability is embodied in article 2320
of Louisiana’s Civil Code.7 An employer is liable under article
2320 for the tortious conduct of its employees committed in the
course and scope of their employment.8 The answers to four
questions are dispositive: “(1) whether the tortious act was
primarily employment rooted; (2) whether the violence was
reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and (4)
7
See LA. CIV. CODE ANN. art. 2320 (West 1997) (“Masters and
employees are answerable for the damages occasioned by their
servants and overseers, in the exercise of the functions in which
they are employed.”).
8
Baumeister v. Plunkett, 673 So.2d 994, 996 (La. 1996).
11
whether it occurred during the hours of employment.”9 The course
of employment aspect of the inquiry refers to time and place (the
third and fourth factors), whereas the scope of employment aspect
refers to the employment-related risk of injury (the first and
second factors).10 “A strong showing by the claimant with reference
to the arise-out-of requirement may compensate for a relatively
weak showing on the during-the-course of requirement, or vice
versa.”11
In Lebrane —— Louisiana’s seminal case on vicarious
liability —— the scope and course of employment test was phrased
thusly:
[Whether] the tortious conduct of the
[employee is] so closely connected in time,
space, and causation to his employment duties
as to be regarded a risk of harm attributable
to the employer’s business, as compared with
conduct motivated by purely personal
considerations entirely extraneous to the
employer’s interests.12
In negligence cases, the court need only determine whether the
employee’s general activities at the time of the tort were within
the course and scope of his employment.13
9
Id. at 996-97 (citing Lebrane v. Lewis, 292 So.2d 216, 218
(La. 1974)).
10
Benoit v. Capital Mfg. Co., 617 So.2d 477, 479 (La. 1993).
11
Id. (quoting Lisonbee v. Chicago Mill and Lumber Co., 278
So.2d 5, 7 (La. 1973)).
12
Lebrane, 292 So.2d at 218.
13
Ermert v. Hartford Ins. Co., 559 So.2d 467, 478 (La. 1990).
12
The Coopers argue that the court erred in granting Wal-Mart’s
motion for j.m.l. by placing undue emphasis on Deggs’ off-duty
status in the course and scope of employment calculus. According
to the Coopers, the court mistakenly believed that all four factors
under that rubric must be established to produce vicarious
liability.14 The Coopers urge that, although Deggs’s off-duty
status weakened the scope of employment showing, the course of
employment factors were sufficiently strong to allow the issue to
go to the jury. In support of their position, the Coopers cite
several cases purported to hold employers vicariously liable for
the tortious conduct of off-duty employees.15
We disagree with the Coopers’ characterization of the
magistrate judge’s ruling. The court’s decision to grant Wal-
Mart’s motion turned not on the on-duty/off-duty distinction, but
on the fact that while Deggs was off duty, she was attending to a
purely personal matter while on her lunch break —— purchasing a
bicycle for her daughter’s birthday. Even though the cases relied
upon by the Coopers impose vicarious liability for off-duty
employee conduct, the conduct in those case was nonetheless
actuated, to an appreciable extent, by the purpose of serving the
14
See supra note 11 and accompanying text.
15
Wattik v. Lewis Grocer Co., 476 So.2d 444 (La. Ct. App.
1995); Dismuke v. Quaynor, 637 So.2d 555 (La. Ct. App. 1994);
Johnson v. Gant, 606 So.2d 854 (La. Ct. App. 1992); Guidry v.
Freeman, 555 So.2d 588 (La. Ct. App. 1989).
13
employer’s business.16 As Deggs’s motivation was purely personal
and entirely extraneous to her service as a Wal-Mart employee, we
cannot say that the court erred in finding the scope of employment
showing to be so weak as to warrant judgment as a matter of law.17
16
See Ermert, 559 So.2d at 477 (“If the purpose of serving the
master’s business actuates the servant to any appreciable extent,
the master is subject to liability if the act is otherwise within
the service. So also, the act may be found to be in the service if
not only the manner of acting but the act itself is done largely
for the servant’s purposes.”) (citations omitted); Wattik, 476
So.2d at 447 (holding employer vicariously liable for employee’s
actions in assaulting two brothers parked in a car outside
employer’s business even though employee clocked himself out before
committing the tort, but noting that the altercation which provoked
the tort was employment-rooted as it was “reasonably incidental to
the performance of the employee’s duties of sweeping or blowing off
the sidewalk and in requesting the plaintiff’s to remove their
vehicle out of the fire lane.”); Dismuke, 637 So.2d at 561 (finding
no clear error in the lower court’s determination that a university
employee was acting within the scope of his employment when he
raped a young girl that was attending camp at the university even
though the employee was technically off duty, but noting that the
employee was engaged in employment-related activity when the rape
occurred); Gant,606 So.2d at 861 (holding employer liable for off-
duty policeman employee’s conduct in killing a bystander by
accidentally discharging his pistol during a telephone call, but
noting that “[b]y entering the station, telephoning Ms. Gunn and
manipulating his pistol, [the policeman] was engaged to some
appreciable extent in law enforcement activity and his motivation
was not purely personal[.]”); Guidry, 555 So.2d at 593 (holding
employer truck company vicariously liable for the negligent acts of
its employee truck driver in injuring a bystander during a
basketball game, but noting that “[t]he accident which injured
[plaintiff] was job-related . . . . The basketball activity was
intended to solicit customers for [the employer] and to entertain
[its] customers and employees while waiting for loads.”).
17
The Coopers also urge that the court failed to follow Ermert
by focusing on Deggs’s specific activity at the time of Mr.
Cooper’s accident —— purchasing a bicycle —— rather than on her
general activity —— negligently moving merchandise in the exit
aisle. See supra, note 13 and accompanying text. The Coopers
misread Ermert, however, inasmuch as their categorization under the
distinction is backwards: Deggs’s general activity was the purchase
14
D. DISMISSAL OF NEGLIGENCE CLAIM
The Coopers argue that, inasmuch as Wal-Mart did not move for
j.m.l. on the Coopers’ direct negligence claim, the district court
erred when it entered judgment as a matter of law on that claim.
And even assuming that Wal-Mart moved for the dismissal of their
negligence claims, contend the Coopers, judgment as a matter of law
was inappropriate because sufficient evidence was adduced from
which the jury could have reasonably inferred Wal-Mart’s own
negligence. Although the Coopers’ theory of Wal-Mart’s independent
negligence is unclear, they appear to predicate Wal-Mart’s direct
liability on its failure (a) to protect Mr. Cooper from the
injuries occasioned by Deggs’s missteps during her purchase of the
bicycle, and (b) to provide its customers with a safe passageway
through which to exit the store.
Our review of the record reveals that, as with the Coopers’
vicarious liability contentions, their direct liability claims are
urged in a surreptitious effort to breathe new life into their case
by challenging issues that were at best peripheral at trial. We do
not find that the Coopers’ arguments with respect to this issue
merit a discussion; they are contrived and unfounded under the case
law. Again, we note that they did not raise the issue of direct
liability as a means of avoiding dismissal when Wal-Mart sought a
j.m.l. at the close of the Coopers’ case in chief.
of the bicycle. Ermert, 559 So.2d at 478-79.
15
III.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is, in all respects affirmed.
AFFIRMED.
16