Pl - Ermert
Df - Hartford Insurance Co.
Ermert was accidentally shot in the
foot by Decareaux while at guest of Larrieu at a hunting
The hunting camp was built by and for friends in which Larrieu was
considered to be the owner because he purchased the lease.
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.
Decareaux was president
of and the majority stockholder of
Nu-Arrow Fence Company.
Larrieu purchased camp materials from Nu-Arrow at costs.
In addition, Nu-Arrows equipment and transportation were used for the
Decareaux used the camp to entertain his employees and promote
At the time of the accident, Decareaux was told that a nutria as
swimming across the canal.
As Decareaux was walking he started loading the shot gun
which was a violation of the
groups general agreement.
The gun accidentally fires and struck
Ermert in the foot, severally injuring him and
leaving him permanently disabled.
Ermert sued the business under respondeat superior, probably to get at
the insurance company rather than bankrupting the friend of a
No vicarious liability arising solely out of membership in such an
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
Judgment against Decareaux and Nu-Arrow for damage in the amount
Reversed portion holding Nu-Arrows Vicariously liable, find Decareaux
was engage in a purely personal recreational pursuit.
The other parties cannot be held primarily liable for the injuries to
Decareaux was within the scope of his employment and the court of
appeals was wrong.
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.
Includes: Employed for a continuous service, controlling movements of
another, or right to control the manner in which one performs a
Felt or undergone as if one were taking part in the experience or
feelings of another.
The court must decide whether the particular accident is a party of the
the more or less inevitable tool of a lawful enterprise.
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
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
It must be determined whether the
tortious act itself was within the scope of the servants
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
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.