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Identifying Cases to Cite. Section 13 of the ALR article analyzes some of the factors that courts have considered when determining whether an employee.

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Presentation on theme: "Identifying Cases to Cite. Section 13 of the ALR article analyzes some of the factors that courts have considered when determining whether an employee."— Presentation transcript:

1 Identifying Cases to Cite

2 Section 13 of the ALR article analyzes some of the factors that courts have considered when determining whether an employee acted within the scope of his employment when committing a nonsexual assault at the business of a customer. They include: –Did the act further the employers business in any way, even if not in the manner or method authorized? –Was the act related to employees duties and incident to the performance of the employees duties? – Had the business purpose of the interaction between the employee and customer been completed? –Did the action arise out of a job dispute, or was the assault in pursuit of private purposes or grievance? –Did the employees duties contemplate the use of force?

3 You will need to align these factors with the circumstances that surrounded Ronnies assault of the customer. You could argue that Acme is not liable because –Ronnies job did not contemplate assault. –Ronnies job was over when he unloaded the goods on the loading dock. It was not necessary for him to pursue the argument to complete his delivery. –Ronnie was pursuing a private grievance. But the plaintiff is likely to that Acme is liable because –the assault arose out a job dispute and was not personal. –Ronnies job was not over, as he remained on the customers loading dock. –the assault furthered Acmes business in that its purpose was to deliver the goods to a customer.

4 You will want to identify relevant cases through sources other than the ALR article to verify that you are using the most relevant cases and the strongest arguments. Key Number Digests are one option of identifying cases with similar issues. The digests organize the law into approximately 400 broad topics divided into approximately 100,000 narrow issues of law, each assigned to a specific key number. The McDermott case that is cited in the ALR has only one headnote. That headnote is assigned to 255K302(3) (Assault under Scope of Employment, under Master and Servant topic). Topic and Key Numbers

5 If you were to find Louisiana cases by topic and key number in the print Louisiana Digest you would need to check the digests pocket part for the most recent cases. Louisiana cases have the most precedential value, but the reasoning of courts in other jurisdictions may be persuasive. Topic and key numbers remain constant across jurisdictions. Print Digests

6 Instead of using the print digests, you might go online and search the LA-CS database for relevant key numbers, using the terms of art that we have identified in the print resources and in the ALR database. You might add other terms associated with factors a court considers when determining liability. Database: LA-CS Digest field search: di(vicarious liability respondeat superior /p assault! (inten! /3 tort! act!) & job dispute personal grievance furtherance)

7 The search retrieved 22 cases in the Louisiana Cases database. On the right of the screen are relevant ALR, Am. Jur. 2d, Am. Jur. Proof of Facts, Am. Jur. Trials articles and Key Numbers that could be used to expand your research. These are your ResultsPlus. ResultsPlus

8 The search retrieved several relevant key numbers under topic 255 (Master and Servant): 302(2) Acts for Which Master is Liable in General 302(3) Assault and Battery 302(6) Acts of a Servant in His Own Behalf 306 Willful and Malicious Acts of Servant Reference to La. C.C k k302(2)

9 We will choose 255k302(3), Assault and Battery, under Scope of Employment as this is the key number assigned to the sole headnote in the McDermott case which was cited in § 13 of the ALR article. Click Most Cited Cases. Assault and Battery Most Cited Cases

10 Select Louisiana as the jurisdiction. The Most Cited Cases feature will retrieve headnotes assigned to key number 255k302(3) in a Custom Digest format. The headnote that has been cited the most will be displayed first, the headnote that has been cited least will be displayed last. The Most Cited Case feature helps determine which cases are most authoritative. Most Cited Cases Louisiana 255k302(3)

11 There are over forty headnotes in Louisianas Custom Digest for key number 255k302(3). LaBrane v. Lewis has been cited more than any other case for this issue, indicating that it is an important case. McDermott is also near the top of the list and the ALR article on assault in the home or business of a customer is also referenced. Cited 147 times

12 The next step is to read the full text of the cases that seem most relevant. The critical and often very subtle factors that influence a decision must be isolated and analyzed. This can only be fully accomplished by a thorough reading of the complete text of the cases. Some cases might seem to be contradictory, but you should be able to detect a trail of consistency drawn from subtle factual distinctions among the cases. You should read opinions that have imposed liability on the employer and opinions that have not imposed liability on the employer.

13 Several of the cases retrieved set forth factors a Louisiana court should consider when deciding whether to hold an employer vicariously liable for the intentional acts of employees: (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) whether it occurred during the hours of employment.

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