Opinion
No. 47,155–CA.
2012-08-31
Amy Nicole Whitham BLOXOM, Plaintiff–Appellant v. The CITY OF SHREVEPORT, American Hallmark Insurance Company of Texas d/b/a Hallmark Specialty Insurance Company, David McFarland d/b/a Action Taxi and Brian Douglas Horn, Defendants–Appellees.
Law Office of J. Patrick Hennessy by J. Patrick Hennessy, Law Office of Alan Stegall by Alan Stegall, Shreveport, LA, for Appellant. Lunn, Irion, Salley, Carlisle and Gardner, Shreveport, LA, by Ronald E. Raney, for Appellees, American Hallmark Ins., David McFarlin and Blue Phoenix Trading.
Law Office of J. Patrick Hennessy by J. Patrick Hennessy, Law Office of Alan Stegall by Alan Stegall, Shreveport, LA, for Appellant. Lunn, Irion, Salley, Carlisle and Gardner, Shreveport, LA, by Ronald E. Raney, for Appellees, American Hallmark Ins., David McFarlin and Blue Phoenix Trading.
Barham, Warner, Stroud & McKay by Jennifer P. McKay, Shreveport, LA, Ansel M. Stroud, III, for Appellee, The City of Shreveport.
Bolen, Parker, Brenner & Lee, Alexandria, LA, by L. Lyle Parker, for Appellee, Allstate Ins. Co.
Brian Douglas Horn, In Proper Person.
Before WILLIAMS, MOORE and LOLLEY, JJ.
MOORE, J.
Amy Nicole Witham Bloxom appeals a summary judgment that dismissed, in his personal capacity only, David McFarlin, the president of the corporation that hired or contracted with the cab driver who killed Ms. Bloxom's son. For the reasons expressed, we affirm.
Factual and Procedural Background
This case arises from a tragic and well-publicized incident. In early 2007, Brian Horn was released from prison in Missouri, where he had served time on a 2003 conviction for felony sexual assault. He came to Louisiana and sought work as a cab driver. David McFarlin, president of Blue Phoenix Trading Company d/b/a Action Taxi, interviewed Horn and hired him even though he was a registered sex offender. Technically, Horn was employed by a subcontractor of Action Taxi's, Moore's Consulting, but he drove a cab marked “Action Taxi.”
In March 2010, Horn posed as a young female, sent several text messages to 12–year–old Justin Bloxom, and eventually lured him into his cab. Horn murdered the boy and dumped his body in a wooded area off Hwy. 171 in DeSoto Parish. Horn is now awaiting trial for capital murder.
Ms. Bloxom filed this wrongful death and survival action in May 2010 against a host of defendants, including McFarlin, individually, and his corporation, Blue Phoenix Trading Company d/b/a Action Taxi.
McFarlin filed this motion for summary judgment in his individual capacity. In support, he attached his own deposition, in which he admitted that he interviewed Horn for the job, saw from Horn's driver's license that he was a convicted sex offender, but nevertheless approved him to drive a cab for a subcontractor, Moore's Consulting. McFarlin maintained that he did all these things only in his capacity as president of Blue Phoenix. He cited Carter v. State, 45,506 (La.App. 2 Cir. 8/11/10), 46 So.3d 787, for its analysis of the difference between a corporation and its constituent shareholders: Louisiana courts are reluctant to hold an officer personally liable for corporate obligations, and “piercing the corporate veil” is appropriate in only limited circumstances not present in this case.
Ms. Bloxom opposed the motion, citing this court's proviso in Carter, supra, that if an officer “through his own fault injures another to whom he owes a personal duty,” the officer is liable personally to the injured third person whether or not the corporation might also be liable. Id. at 7, 46 So.3d at 792. She asserted that McFarlin owed a duty to Justin, his mother and the public not to allow a known sex offender to operate a taxi. At least, she argued, whether McFarlin owed and breached this duty was a genuine issue of material fact precluding summary judgment.
The district court granted summary judgment, expressly adopting McFarlin's brief as its reasons.
The Parties' Positions
Ms. Bloxom has appealed, urging by one assignment of error that the court erred in dismissing McFarlin individually as a defendant. She concedes that in Carter, supra, the court found no particular duty to the public, but she contends that this case is different: “Without question, there is a legal duty which was breached in this case.” In support, she cites the general concept of tort liability, La. C.C. art. 2315, and a case that imposed personal liability, specifically on a contractor's engineer whose lack of care resulted in an industrial accident and death. Canter v. Koehring Co., 283 So.2d 716 (La.1973). She also cites cases in which employers were found vicariously liable for sexual assaults committed by their employees. Harrington v. State, 97–1670 (La.App. 4 Cir. 5/20/98), 714 So.2d 845, 128 Ed. Law. Rep. 531;Smith v. Orkin Exterminating Co., 540 So.2d 363, 13 A.L.R.5th 962 (La.App. 1 Cir.1989). She argues that the employer “indisputably” has a duty to exercise reasonable care in the selection of an employee who will have a unique opportunity to commit a crime against a third party in the performance of his duties; she suggests it “makes no sense” to say that McFarlin owed a duty only to his own company and not to the public. She asks the court to reverse and remand for trial.
McFarlin responds that imposing personal liability on the individual who actually hires an allegedly negligent employee would result in the personal responsibility of many managers and defeat the purpose underlying the distinction between the individual and the corporation. Kemper v. Don Coleman Jr. Bldr., 31,576 (La.App. 2 Cir. 7/29/99), 746 So.2d 11,writs denied, 99–2954, 99–2955 (La.1/7/00), 752 So.2d 861. Despite her use of qualifiers like “indisputably” and “without question,” Ms. Bloxom has not identified any specific duty; the cases cited by her show that the employer must exercise reasonable care in hiring employees, but none imposed personal liability on a corporate officer. He concludes that the summary judgment should be affirmed.
Discussion
The parties have correctly identified the legal concepts, which we would only reiterate from Carter v. State, supra, with emphasis added and some citations omitted:
It is well settled that a corporation is a distinct legal entity, separate from the individuals who comprise it. La. C.C. art. 24; First Downtown Development v. Cimochowski, 613 So.2d 671 (La.App. 2 Cir.), writ denied,615 So.2d 340 (1993); * * *. The primary economic purpose underlying this framework of limited liability is the encouragement and promotion of business and industry. Kemper v. Don Coleman Jr. Bldr., [ supra ]; * * *.
Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. Kemper, supra;First Downtown Development, supra. Louisiana courts are very hesitant to hold a shareholder, officer or director personally liable for corporate obligations. Kemper, supra;First Downtown Development, supra; * * *.
In a few limited situations, however, a litigant can reach an individual shareholder by “piercing the corporate veil,” thereby rendering the individual liable for the debts incurred by the corporation. Kemper, supra;First Downtown Development, supra. If an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. La. C.C. art. 2315; Kanter [ Canter] v. Koehring Co., [ supra ], 283 So.2d 716 (La.1973); * * *.
The operative question in this case is whether McFarlin owed a personal duty to Justin Bloxom to protect him from the risk of sexual assault and murder at the hands of a cab driver employed or contracted by McFarlin. Louisiana uses the duty-risk analysis to resolve questions of liability under La. C.C. art. 2315. The analysis comprises five elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damage element). Lemann v. Essen Lane Daiquiris Inc., 2005–1095 (La.3/10/06), p. 7, 923 So.2d 627, 633, and citations therein.
In deciding whether to impose a duty in a given case, the court must make a policy decision in light of the unique facts and circumstances presented. Carrier v. City of Amite, 2010–0007 (La.10/19/10), p. 3, 50 So.3d 1247, 1249, and citations therein. The scope of the duty is ultimately a question of policy. Rando v. Anco Insulations Inc., 2008–1163 (La.5/22/09), p. 38, 16 So.3d 1065, 1092–1093, and citations therein. A risk may be outside the scope of a duty when the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, becausethere was no ease of association between that risk and the legal duty. Id. Rules of conduct are designed to protect some persons under some circumstances from some risks. Wex Malone, Ruminations on Cause–in–Fact, 9 Stan. L.Rev. 60 (1956). The requirement of legal cause prevents the imposition of liability “in an indeterminate amount for an indeterminate time to an indeterminate class.” PPG Industries Inc. v. Bean Dredging, 447 So.2d 1058, 1061 (La.1984), and citations therein.
Personal liability of a corporate officer is premised on “malfeasance, misfeasance, or nonfeasance” resulting from failure to act upon actual knowledge of the risk to others. Canter v. Koehring Co., 283 So.2d at 721. When an employer hires an employee who in the performance of his duties will have a unique opportunity to commit a tort against a third party, he has a duty to exercise reasonable care in the selection of that employee. Cote v. City of Shreveport, 46,571 (La.App. 2 Cir. 9/21/11), 73 So.3d 435;Kelley v. Dyson, 2008–1202 (La.App. 5 Cir. 3/24/09), 10 So.3d 283;Taylor v. Shoney's Inc., 98–810, 15 IER Cases 285 (La.App. 5 Cir. 1/26/99), 726 So.2d 519,writ denied,99–0540 (La.4/9/99), 740 So.2d 635.
Applying these principles to this case, we find no personal duty on McFarlin's part. Admittedly, the facts appear to satisfy the cause-in-fact element, in that McFarlin's hiring decision facilitated Brian Horn's ruse to entice the naïve 12–year–old into his cab. Nevertheless, Horn likely could have accomplished the same goal through suggestive text messages even had he not been a cab driver.
The crux of the case is the scope of protection element: was this particular risk too remote from McFarlin's personal conduct? The beneficial nature of the corporate structure makes courts hesitant to impose personal liability on officers for their corporate acts. Carter v. State, supra, and citations therein. Horn was an employee not of McFarlin but of his corporation, Blue Phoenix (d/b/a Action Taxi), or its contractor, Moore's Consulting. Imposing personal liability on McFarlin for the torts of his corporate hires would frustrate the benefit of the business organization. This policy decision strongly supports a finding of no personal liability.
Moreover, since the unique situation presented in Canter v. Koehring, supra, the courts have been truly reluctant to impose personal liability on officers for their purely corporate acts. Recently, this court rejected such a claim against the president of a trucking company who allegedly performed negligent work on the brakes of a corporate truck, resulting in injury to the plaintiff, Carter v. State, supra. We have also rejected personal liability against members of an LLC who allegedly failed to obtain an environmental permit before beginning a construction project, resulting in contamination to the plaintiffs' property, Petch v. Humble, 41,301 (La.App. 2 Cir. 8/23/06), 939 So.2d 499,writ denied,2006–2482 (La.12/15/06), 945 So.2d 692. We imposed corporate liability on a homebuilder but no personal liability on its president who failed to advise the plaintiffs that their house was in a flood zone, Kemper v. Don Coleman Jr. Bldr., supra.
In a recent unpublished opinion, one court found a genuine issue of material fact as to whether a “boss and co-owner” of a construction company was personally liable for a rape committed by an employee. The boss/co-owner had given the employee an apartment, was aware of the employee's chronic alcohol and drug use, and had received numerous complaints about the employee's obscene comments and sexual gestures toward the victim, all in the four months before the rape. Waldrop v. Three Forty Three Oaks Ltd., 2009–1333 (La.App. 1 Cir. 2/12/10), 2010 WL 502794,writ denied,2010–0591 (La.5/21/10), 36 So.3d 234.
A corporation may be liable for the sexual assaults of its employees under La. C.C. art. 2320, as in Harrington v. State, supra, and Smith v. Orkin Exterminating Co., supra, but this is not the same as imposing personal liability on officers. Other cases do not even find corporate liability, often because the employee's tort was outside the course and scope of employment. S.J. v. Lafayette Parish School Bd., 2009–2195 (La.7/6/10), 41 So.3d 1119, 259 Ed. Law. Rep. 353; Cote v. City of Shreveport, supra; Kelley v. Dyson, supra;Taylor v. Shoney's Inc., supra.
The facts of this case, the policy considerations inherent in the duty-risk analysis and the jurisprudence concerning the personal liability of corporate officers all compel a finding that McFarlin's personal duty of reasonable care in hiring cab drivers for his corporation did not extend to this particular risk of harm, however tragic.
At oral argument, counsel analogized the case to an auto accident in which a corporate president, driving a company car, rear-ends another driver on a city street. Counsel correctly showed that in such a situation, it would be absurd for the president to deny his personal liability by hiding behind the corporate shield and shifting responsibility to his company. The instant case, however, will not yield to such simplification. Anyone behind the wheel, whether driving for pleasure or on business, as an employee, agent or officer of a corporation, owes a personal duty not to rear-end other vehicles. By contrast, a corporate officer making a hiring decision is primarily acting on behalf of his or her company. He or she owes a duty of reasonable care which does not extend to all torts that all employees might commit. The district court properly found that Justin Bloxom's tragic injury and death fell outside the scope of McFarlin's duty of reasonable care in hiring taxi drivers for his corporation.
Conclusion
For the reasons expressed, the judgment is affirmed. All costs are to be paid by the appellant, Amy Nicole Witham Bloxom.
AFFIRMED. LOLLEY, J., dissenting with written reasons.
LOLLEY, J., dissenting.
I respectfully dissent from the ruling of the majority in this matter. I submit that the actions of one David McFarlin, president of Blue Phoenix Trading Company d/b/a Action Taxi, in the hiring of one Brian Horn as a taxi cab driver was negligence to the point of denying him the protection of the classic corporate veil.
Brian Horn was and is a convicted sex offender. He was imprisoned in the state of Missouri for his crimes of felony sexual assault and was released in 2007. Horn made his way to the Shreveport, Louisiana area seeking employment. The record clearly shows that he was subsequently interviewed by Mr. David McFarlin to drive a taxi. McFarlin, at the time of Horn's employment, was president of Blue Phoenix Trading Company d/b/a Action Taxi. The record also shows that technically Horn was employed by a subcontractor Moore's Consulting. However, the vehicle(s) he operated were marked Action Taxi. McFarlin, at the time of his employment had full knowledge that Horn was a convicted sex offender.
I am of the opinion that all cases must be reviewed considering the particular and peculiar facts and circumstances presented. Here, McFarlin hired Horn to drive a taxi for one of his companies with full knowledge that he was a convicted sex offender. (How Horn was issued a permit to operate a public conveyance such as a taxi cab, considering his status as a registered sex offender, is a very valid question, but not at issue here.) As a direct result of McFarlin's actions, Horn then had unfettered access to the streets and highways of Caddo Parish and other areas of northwest Louisiana in furtherance of his employment.
I am in agreement with the writer that the operative question in this case is whether McFarlin owed a personal duty to the victim of the crime, or in fact all other persons in this area, to protect them from the risk of sexual assault and murder at the hands of a taxi driver employed or contracted by McFarlin. Considering the particular facts and circumstances of this case, I am of the opinion that he absolutely had a personal duty, primarily because of the nature of the employment. Horn had ongoing and constant contact with the general public. He was a roving, rolling risk at all times. With full knowledge that Horn was a convicted sexual offender, McFarlin personally placed Horn in an unsupervised position where he had direct access to and contact with the public at large and continuing opportunity to prey upon them.
The factual situation does satisfy the cause-in-fact element in that it directly facilitated Horn's unchecked mobility in the area. This unchecked mobility allowed Horn to set the stage and ultimately lure the victim into a vehicle thinking he was going to have an encounter with a teenage girl. As the result of this expected encounter Justin Bloxom was murdered by Brian Horn.
I am of the opinion that the actions of Mr. David McFarlin, acting in his capacity as president of the corporation, in the hiring of this convicted sexual offender to operate a taxi cab for one of his corporations was, in fact, negligence per se. This overt degree of negligence should not allow him to stand in the shadows of the corporate veil to avoid personal responsibility for the murder of Justin Bloxom. Accordingly, I respectfully dissent.
APPLICATION FOR REHEARING
Before BROWN, WILLIAMS, MOORE, LOLLEY and SEXTON (Pro Tempore), JJ.
Rehearing granted. MOORE and SEXTON, JJ., would deny rehearing.
ON REHEARING
Before BROWN, WILLIAMS, MOORE, LOLLEY and SEXTON (Pro Tempore), JJ.
LOLLEY, J.
The facts and procedural history of this case have been thoroughly set forth in the initial opinion and dissent. We granted rehearing to address the issue of whether David McFarlin owed a personal duty to Amy Bloxom, the mother (and plaintiff in this matter) of the murdered child, Justin Bloxom, to protect him from the risk of sexual assault and murder at the hands of Brian Douglas Horn. McFarlin, president of Blue Phoenix Trading Company d/b/a Action Taxi, personally hired Horn to be a taxi cab driver, despite knowing that Horn was a convicted and registered sex offender. In the original majority opinion, it was decided that McFarlin, as a corporate officer, did not have a personal duty and summary judgment on the issue was correct. We disagree, and now vacate this court's original opinion, reverse the trial court's grant of summary judgment, and remand this matter for further proceedings.
Discussion
Not only does the original opinion lay out the facts and procedural history of this case, but it also succinctly sets forth the applicable statutory and jurisprudential precepts to be applied. We agree with the assertion in the original opinion that “[A corporate officer] owes a duty of reasonable care which does not extend to all torts that all employees might commit.” More specifically, all parties agree with the pronouncement of law in Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973) that, “[The corporate officer] must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages.” Thus, the issue addressed in this case is whether a genuine issue of fact exists as to whether McFarlin, a corporate officer, had a personal duty to Justin and his mother, Amy Bloxom.
We also note certain assertions observed in the original opinion, earlier made in Carter v. State, Dept. of Transp. and Development, 45,506 (La.App. 2nd Cir.08/11/10), 46 So.3d 787, 792:
Due to the beneficial role of the corporate concept, the limited liability attendant to corporate ownership should be disregarded only in exceptional circumstances. Louisiana courts are very hesitant to hold a shareholder, officer or director personally liable for corporate obligations.
* * * *
Regardless of the basis for piercing the corporate veil, the situation must be viewed with regard to the totality of circumstances in each case. Whether imposition of individual liability is justified under particular circumstances is primarily a factual finding to be made by the trial court. (Citations omitted; emphasis added).
This case presents the perfect storm envisioned by the applicable jurisprudence—“exceptional circumstances” when viewed in their totality come together to potentially expose a corporate officer to personal liability. When we regard the “totality of circumstances” in this case, we are called to consider: this corporate officer and his admitted knowledge; this employee and his known propensities; this job which the employee was chosen to fill; and, this horrific tort he committed directly related to McFarlin's specific knowledge. Such consideration leads to a conclusion that a genuine issue of material fact clearly exists in this particular case as to McFarlin's personal duty for two distinct reasons: (1) McFarlin's admitted knowledge of Horn's status as a registered sex offender; and, (2) the unique job McFarlin hired Horn to perform.
Although having no bearing on our decision herein, we note that in 2010 the Louisiana Legislature made it “unlawful for any person who is required to maintain registration pursuant to Chapter 3–B of Title 15 to operate any bus, taxicab, or limousine for hire.” The notes of the statute provide that, “This Act shall be known as the ‘Justin M. Bloxom Act’ in honor of Justin M. Bloxom, a resident of Stonewall, Louisiana, who was murdered on March 30, 2010.” SeeLa. R.S. 15:553.
The first fact bearing heavily on the issue of McFarlin's duty is his knowledge. McFarlin knew that Horn was a convicted and registered sex-offender, having been convicted for felony sexual assault in Missouri, and before that in Louisiana for indecent behavior with a juvenile. Louisiana R.S. 15:540(A) addresses the purpose of Louisiana's sex offender registration law, providing that, “The legislature finds that sex offenders, sexually violent predators, and child predators often pose a high risk of engaging in sex offenses, and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders, sexually violent predators, and child predators is of paramount governmental interest.” Registration of sex offenders is a public safety concern, and knowledge of someone's status as a sex offender should not be taken lightly. Here, Horn's status as a sex offender was evident on his driver's license. Notably, with a quick internet search on the sex offender website, McFarlin could have easily determined why Horn was required to register as a sex offender. The record does not reflect that McFarlin made any effort to make such an inquiry. From the facts discovered thus far, it appears that McFarlin chose to hire Horn, despite his knowledge of Horn's proclivities. McFarlin lightly accepted the fact, personally chose to disregard the importance of the information, and gave Horn the protective shield of the taxi cab to pursue his victim.
The second consideration instrumental in determining whether McFarlin had a personal duty in this case centers on the particular and unique job for which Horn was hired—a taxi cab driver. In our society, taxi cab drivers enjoy a unique position. Historically, society has been accustomed to the idea that the general public can safely employ the use of a common carrier. Whereas most people, certainly children, would not get into a random vehicle with a complete stranger, custom tells us that a taxi is safe and dependable. This despite the fact that the passenger is at the complete and utter mercy of a perfect stranger, who has full dominion over the passenger—a virtual sitting duck. The taxi cab passenger is completely vulnerable. Understandably then, a common carrier is held not simply to a reasonable degree of care, but to the highest degree of care, and the commission of any act of negligence or the omission of any act of care or caution, no matter how slight in degree, subjects such carrier to liability. Cox v. Toye Bros. Yellow Cab Co., 144 So.2d 448 (La.App. 4th Cir.1962).
But simply because a common carrier must act with the highest degree of care does not necessarily inflict personal liability onto the corporate officer of the company operating the common carrier. Guided by the premise that common carriers owe their passengers the highest degree of care, the officer of such a company has an obvious duty to the public to properly vet job applicants prior to their employment. Who has the control to ensure that the taxi cab driver is not dangerous? In this case, one person had control of that decision: McFarlin. One person made the decision that Horn, a known sex offender, could be entrusted with the public's safety, the highest degree of care, even though his legal status reflected he could not be so trusted. McFarlin personally made the decision that despite Horn's status as a sex offender, he was capable of driving a taxi cab and deserved the public's trust. McFarlin, knowing that Horn was a dangerous person, still made the choice to set him loose among the public under the guise of the secure taxi cab. McFarlin's gross misjudgment should not allow him the cover of the corporate shield that is allowed most corporate officers who make careless and unknowing mistakes.
In addition to the trust element imposed upon a taxi cab driver by their mere position as such, the nature of the employment is also important because the unique mobility of the position. Horn had ongoing and constant contact with the general public, with no supervision. He was a roving, rolling risk at all times. With full knowledge that Horn was a convicted sex offender, McFarlin personally placed Horn in an unsupervised position where he had direct access to and contact with the public at large and continuing opportunity to prey upon them.
Moreover, considering McFarlin's knowledge of Horn's dangerous nature, his apparent disregard of Horn's status, and the nature of the job Horn was hired to performed, it was certainly reasonably foreseeable that Horn was set up to commit his next crime. The original opinion noted that:
A risk may be outside the scope of a duty when the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Rando v. Anco Insulations, Inc., 2008–1163 (La.05/22/09), 16 So.3d 1065. Rules of conduct are designed to protect some persons under some circumstances from some risks. Wex Malone, Ruminations on Cause–in–Fact, 9 Stan. L.Rev. 60 (1956).
At oral argument, McFarlin's counsel argued that the circumstances of the particular injury to Justin could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and McFarlin's duty. We strongly disagree. In fact, placing a known sex offender in a taxi cab, with unfettered access and control over his passengers who assume they are in a position of safety is akin to placing the proverbial fox in the hen house. The purpose behind the sex offender registration law is to protect the public from repeat offenses. Placing a known sex offender in an unsupervised position with total control over the unsuspecting public lulled into complacency by the taxi cab cover leads to reasonably anticipated consequences—a repeat sex offense.
Furthermore, imposing personal liability on McFarlin, a corporate officer, for the torts of his employee will not frustrate the benefit of business organizations as maintained by the original majority opinion. The legal precepts cited in the original opinion bear repeating here:
Personal liability of a corporate officer is premised on “malfeasance, misfeasance, or nonfeasance” resulting from failure to act upon actual knowledge of the risk to others. Canter v. Koehring Co., 283 So.2d at 721. When an employer hires an employee who in the performance of his duties will have a unique opportunity to commit a tort against a third party, he has a duty to exercise reasonable care in the selection of that employee. Cote v. City of Shreveport, 46,571 (La.App.2d Cir.09/21/11), 73 So.3d 435;Kelley v. Dyson, 2008–1202 (La.App. 5th Cir.03/24/09), 10 So.3d 283;Taylor v. Shoney's Inc., 1998–810, 15 IER Cases 285 (La.App. 5th Cir.01/26/99), 726 So.2d 519,writ denied,1999–0540 (La.04/9/99), 740 So.2d 635.
Prior courts have left open the door for “piercing the corporate veil” and finding personal liability of a corporate officer. It is not our intent to open the floodgates of litigation against corporate officers; however, if this case is not the one for which a corporate officer may have personal liability, it is difficult to perceive any fact scenario where a corporate officer ever will. McFarlin had precise knowledge of Horn's history. This employee had the “unique opportunity” to commit the precise sort of tort McFarlin was informed Horn might commit. This horrific case is intensely fact specific. In this particular case, for this particular employee, who was hired by McFarlin for the particular purpose of driving a cab, we believe there exists a genuine issue of whether McFarlin had a personal duty to Justin and, now, his mother. In fact, this case is the exception, not the rule, for which prior jurisprudence has allowed a crack, even a sliver, to pierce the corporate veil and find the corporate officer personally liable. We are willing to slip through that crack in this particular case and give the trial court the opportunity to open that door at trial. McFarlin's overt degree of negligence should not allow him to stand in the shadows of the corporate veil to avoid personal liability for the murder of Justin Bloxom. So considering, the trial court's grant of summary judgment on this issue was in error.
Conclusion
For the forgoing reasons, the summary judgment in favor of David McFarlin is reversed, and he is to bear all costs of this appeal. This matter is remanded to the trial court for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. MOORE, J., dissents and assigns written reasons.
SEXTON, J. (Pro Tempore), dissents for the reasons assigned by MOORE, J.
MOORE, J., dissents.
I respectfully dissent for the reasons expressed in this court's original opinion. The main thrust of the majority's opinion is that the extraordinary, horrific and sinister conduct of Horn, the man whose hiring McFarlin approved, warrants holding McFarlin personally liable for Horn's tort. However, tort liability under La. C.C. art. 2315 is premised on whether the particular injury to the plaintiff could be reasonably foreseen or anticipated. Rando v. Anco Insulations Inc., 2008–1163 (La.5/22/09), p. 38, 16 So.3d 1065, 1092–1093. Specifically, even if an employee will have a unique opportunity to injure third parties, the employer's duty in hiring is one of reasonable care. Cote v. City of Shreveport, 46,571 (La.App. 2 Cir. 9/21/11), 73 So.2d 435. The extraordinary and horrific nature of Horn's acts is precisely what takes this case out of the ambit of the reasonably foreseeable. The defendant's reasonable duty does not extend to all risks. PPG Industries Inc. v. Bean Dredging, 447 So.2d 1058, 1061 (La.1984).
Unfortunately, in the nearly 40 years since it rendered Canter v. Koehring Co., 283 So.2d 716 (La.1973), the supreme court has never defined, or even elaborated upon, the concept of “personal duty” which would justify piercing the corporate veil to impose personal liability on an officer. To be sure, none of the later cases cited by the plaintiff or by the majority has resulted in personal liability of a corporate officer. Harrington v. State, 97–1670 (La.App. 4 Cir. 5/20/98), 714 So.2d 845, 128 Ed. L. Rep. 531;Smith v. Orkin Exterminating Co., 540 So.2d 363, 13 A.L.R. 5th 962 (La.App. 1 Cir.1989). Perhaps this is indeed the right case for the supreme court to take and thereby reaffirm or clarify its general pronouncements in Canter. Without such guidance, today's opinion is likely to tatter the corporate veil of La. C.C. art. 24 and R.S. 12:92, despite the majority's meticulous effort to depict the case as sui generis.
Finally, I would note that La. R.S. 15:553, which makes it a crime for a registered sex offender to operate a taxicab for hire and is cited by the majority, was enacted in 2010 as a response to this tragic case. Because it was not on the books when McFarlin approved Horn's hiring, it cannot be viewed as evidence that McFarlin flaunted an established, statutory duty.
I respectfully dissent.