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Ermert v. Hartford Insurance Co., 559 So. 2d 467

Louisiana Supreme Court.






Vicarious Liability




Employer-Employee Relationship

Quick Notes

Guy who was shot in the foot at a hunting camp v. Insurer of company owned by man who shot him.



o         Whether the other members were vicariously liable for Decareaux negligence?  No.

o         Was Decareaux was acting in the scope of his employment and if Nu-Arrow could be held vicariously liable?  Yes




o         Judgment against Decareaux and Nu-Arrow for damage in the amount $595,000


o         Reversed portion holding Nu-Arrows Vicariously liable, find Decareaux was engage in a purely personal recreational pursuit


o         Court of Appeals Reversed, Trial Court Reinstated.





o         Pl - Ermert

o         Df - Hartford Insurance Co.

What happened?

o         Ermert was accidentally shot in the foot by Decareaux while at guest of Larrieu at a hunting camp.

o         The hunting camp was built by and for friends in which Larrieu was considered to be the owner because he purchased the lease.


o         The group had no written by-laws just an agreement regarding hunter safety precautions and not having a loaded gun in camp and not to shoot tame wild animals near the camp.

o         Decareaux was president of and the majority stockholder of Nu-Arrow Fence Company.

o         Larrieu purchased camp materials from Nu-Arrow at costs.

o         In addition, Nu-Arrows equipment and transportation were used for the camp.

o         Decareaux used the camp to entertain his employees and promote business.


o         At the time of the accident, Decareaux was told that a nutria as swimming across the canal. 

o         As Decareaux was walking he started loading the shot gun which was a violation of the groups general agreement.

o         The gun accidentally fires and struck Ermert in the foot, severally injuring him and leaving him permanently disabled.

o         Ermert sued the business under respondeat superior, probably to get at the insurance company rather than bankrupting the friend of a friend.

Trial Courts

o         No vicarious liability arising solely out of membership in such an organization.

o         However, held that Nu-Arrow, Df - employer, benefited from the camps existence and was therefore vicariously liable for it presidents negligence while working at the camp, b/c Decareaux was w/in the scope of his employment at the time of the accident.

o         Judgment against Decareaux and Nu-Arrow for damage in the amount $595,000.


Court of Appeals

o         Reversed portion holding Nu-Arrows Vicariously liable, find Decareaux was engage in a purely personal recreational pursuit.


Issue 1

o         The other parties cannot be held primarily liable for the injuries to Ermert.


Issue 2

o         Decareaux was within the scope of his employment and the court of appeals was wrong.



o         A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the others control or right to control.

o         Includes:  Employed for a continuous service, controlling movements of another, or right to control the manner in which one performs a service.



o         Felt or undergone as if one were taking part in the experience or feelings of another.


Determining Foreseeability

o         The court must decide whether the particular accident is a party of the the more or less inevitable tool of a lawful enterprise.

o         The employer should be held to anticipate and allow for risks to the public that arise out of and in the course of his employment of labor.



o         If the purpose of serving the masters business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the services.


For Tort Cases

o         It must be determined whether the tortious act itself was within the scope of the servants employment.


For Negligence Cases

o         The court in a negligence case need ONLY determine whether the servants GENERAL activities at the time of the tort were WITHIN the scope of his employment.

o         It is immaterial that the violation was not to be foreseen, and the fact that an act is done in a forbidden manner does not remove the act from the scope of employment.



Class Notes

What test is used here?


  • Enterprise Theory Test
    • There is liability when the enterprise of the employer is benefits by the acts of the employee BUT FOR the injuries.
    • This focuses on the benefit, motive and purpose of the activities in furtherance of the employer.


  • Nu-Arrow Respondeat Superior (Analysis)
    • Is Decareaux directly responsible for the injuries?  Yes.
    • Is Decareaux an employee or independent contractor?  Employee.
    • Was Decareaux acting within the scope of his employment?  Yes.


  • The other members of the hunting group (Analysis)
    • Where the other members directly responsible for Decareaux actions?  No.  It was not foreseeable that this accident would happen.
    • Was the group a joint venture?  No.  They were too loose knit.


What is a Joint Venture?

o        It is generally an undertaking to execute a small number of acts or objectives.

o        A joint venture exists when two more people enter into an activity if:

o        They have a common purpose (Individually Share Expenses)

o        They have a mutual right of control (Equal Respect of Desires)