
    Rose SEARCY, Plaintiff-Appellant, v. SHONEY’S RESTAURANT, Defendant-Appellee.
    No. 32544-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 1999.
    Rehearing Denied Jan. 20, 2000.
    
      Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P. by Jon K. Guice, W. Michael Street, Monroe, Counsel for Appellant.
    Sullivan, Stolier & Resor by Stephen C. Resor, Gloria T. Lastra, New Orleans, Counsel for Appellee.
    Before CARAWAY, PEATROSS & KOSTELKA, JJ.
   | .PEATROSS, Judge.

Plaintiff, Rose Searcy, appeals the judgment of the Workers’ Compensation Judge (“WCJ”) dismissing her claim against her employer, Shoney’s Restaurant (“Sho-ney’s”), for workers’ compensation benefits and medical expenses. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of April 3, 1997, at approximately 1:45 a.m., Plaintiff, who was riding as a guest passenger in an automobile owned and driven by a co-employee, Mr. Stuart Forwood, was involved in a single-car accident on U.S. Highway 190 in West Baton Rouge Parish. As a result of this accident, Plaintiff sustained severe injuries.

At the time of the accident, Plaintiff was the general manager of Shoney’s Restaurant No. 1195, located in West Monroe. She had been promoted to this position from the position of dining room manager of Shoney’s Restaurant No. 1185 in Monroe, a position she held for approximately six years. Mr. Forwood was the general manager of Shoney’s Restaurant No. 1185 in Monroe and had previously been Plaintiffs supervisor.

On April 2, 1997, Plaintiff and Mr. For-wood attended a mandatory business meeting on behalf of Shoney’s in Baton Rouge. According to Plaintiff, the meeting was a “show and tell” regarding upcoming Shoney’s promotions. Shoney’s general managers and area directors attended the meeting. Both Plaintiff and Mr. Forwood were being paid for the trip, i.e., they were “on the clock” according to Plaintiff; and Mr. Forwood’s mileage for the trip was being paid by Shoney’s.

Despite the fact that the meeting ended at about 4:00 p.m., Mr. Forwood and Plaintiff remained in Baton Rouge. Plaintiff had previously arranged to meet Ms. Michelle Weeks, another Shoney’s employee, for dinner while she was in | PBaton Rouge. After the meeting, Plaintiff contacted Ms. Weeks and they agreed to meet for dinner at Chili’s Restaurant in Baton Rouge. Plaintiff and Ms. Weeks had spoken on the telephone numerous times for business purposes and had developed a friendly rapport, but had never met. In the days immediately preceding the Baton Rouge meeting, they discussed the opportunity to finally meet in person under social circumstances and had agreed to do so after the meeting.

Although the group met at Chili’s for dinner, only Ms. Weeks and Mr. Forwood actually ate dinner. Plaintiff testified that she had two glasses of wine, but did not order her own meal, choosing instead to eat intermittently from Mr. Forwood’s plate. After dinner, the trio went to three separate bars for drinks and dancing, Glen’s, Triple A and The Texas Club. All three consumed alcohol during the course of the evening.

Plaintiff and Mr. Forwood left Baton Rouge at approximately 1:30 a.m. on April 3, 1997, despite Ms. Weeks’ attempts to persuade them to remain in Baton Rouge due to the late hour. Plaintiff testified that she informed Mr. Forwood that she had been awake since 3:30 a.m. the previous day and would not be able to assist him in driving or in staying awake. Ms. Weeks also testified that Plaintiff stated she was too intoxicated to help Mr. For-wood drive or stay awake. Soon after beginning the trip, Mr. Forwood fell asleep while driving and his car struck a median rail, became airborne and rolled counterclockwise onto its top, coming to rest in the left eastbound lane of U.S. Highway 190. Although Mr. Forwood sustained minor injuries, Plaintiff suffered serious injuries as a result of the accident. She returned to her former position with Sho-ney’s in January 1998 and, |3in April 1998, brought this workers’ compensation suit, claiming that her injuries are compensable under the Louisiana Workers’ Compensation Act.

After Plaintiff filed her claim, Shoney’s filed a motion for summary judgment on the ground that Plaintiff could not demonstrate that the accident arose out of her employment and that she was in the course and scope of her employment at the time of the accident. Plaintiff subsequently filed a Motion for Partial Summary Judgment on the same issue in opposition to Shoney’s motion. On January 12, 1999, after a hearing on the parties’ motions, the WCJ granted Shoney’s Motion for Summary Judgment and dismissed Plaintiffs claim. The WCJ stated in her oral reasons for judgment:

The first thing that the Court finds is that the parties were in the course and scope of their employment when they went down to Baton Rouge for a meeting and that meeting was to further the business at Shoney’s.... The Court finds that from the time they left that meeting, during the visit at Chili’s Restaurant ... and during that visit at the bar establishments there was in fact a deviation from employment ... [ Plaintiff ’s] deposition testimony indicates to me that she actively engaged in the deviation ... Because of that deviation, I find that it was not— that the deviation was not reasonably incidental to then-service to Shoney’s. I also find that it unreasonably increased their risk of injury ... Evidence indicates that a lot of what happened was out of the control of [Plaintiff], but the Court does not feel that it can hold Shoney’s responsible for the negligent acts of Mr. Forwood ... Although they may have re-entered their employment when they got back on the highway coming to Monroe, the fact that they had engaged in activity that contributed to that accident made it unreasonably— it unreasonably increased the risk of injury. Therefore, I cannot find that they were involved or in the course and scope of their employment at the time of the accident. I think that seven hours on a personal endeavor made the deviation so great that I cannot hold Shoney’s responsible for the negligent activities of Mr. Forwood which resulting (sic) in the injury to [Plaintiff].

This appeal ensued.

DISCUSSION

Summary Judgment

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. The judgment sought 1¿shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Banks v. State Farm Ins. Co., 30,868 (La.App.2d Cir.8/19/98), 717 So.2d 687.

The mover has the burden of establishing an absence of a genuine issue of material fact. A fact is material if its existence or non-existence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Banks, supra; Curtis v. Curtis, 28,698 (La.App.2d Cir.9/25/96), 680 So.2d 1327. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Taylor v. Rowell, 98-CC-2865 (La.5/18/99), 736 So.2d 812; Banks, supra; Barron v. Webb, 29,707 (La.App.2d Cir.8/20/97), 698 So.2d 727.

Arising out of and in the Course and Scope of Employment

In order for an injured employee to recover under the Workers’ Compensation Act, it must be proven by a preponderance of the evidence that she has received a “personal injury” by accident arising out of and in the course of her employment. La. R.S. 23:1031; Hoy v. Gilbert, 98-CC-1565 (La.3/2/99), — So.2d -, 1999 WL 1259896. The elements, therefore, of “arising out of’ and “in the course of’ employment are essential to Plaintiffs recovery. A finding that one or the other is not present in the instant case is fatal to Plaintiffs claim and warrants dismissal. Id.

In Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932), the supreme court set forth a two-prong test, which continues to be valid today, to determine if an employee’s actions met the necessary criteria to remain under the auspices of the Workers’ Compensation Act:

(a) an accident occurs in the course of an employment when it takes place during the time of such [¡¡employment, and (b) it arises out of the employment when it is “the result of some risk to which the employee is subjected in the course of his employment to which he would not have been subjected had he not been so employed.”

We find that Plaintiffs actions do not meet the second prong of the Kern test.

Plaintiff, citing Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2d Cir.1980), writ denied, 385 So.2d 793 (La.1980), admits that she deviated from the purpose of the trip, pursuing her employer’s training objectives, but asserts that this case falls under the ambit of a deviation/re-entry analysis. Campbell defines re-entry into the course of employment, for compensation purposes, as occurring when an employee who has deviated from his employment turns back toward the direction of the employment destination for the purpose of discharging his employment duties. We find, however, that this analysis fails to consider the second prong of the Kern test in that a deviation is one that could reasonably be contemplated as humanly incidental to an employee’s service and does not unreasonably increase the risk of injury. (Emphasis ours). Robinson v. F. Strauss & Son, Inc., 481 So.2d 592 (La.1986), citing Kern, supra.

On this record, we find that Plaintiffs and Mr. Forwood’s actions unreasonably increased their risk of injury. We cannot say that it is a reasonable outcome to the attendance of a mandatory meeting for Plaintiff and Mr. Forwood to deviate from their return trip by nine hours consuming alcoholic beverages, dancing and playing pool, until 1:30 a.m. To the contrary, Plaintiff and Mr. Forwood forfeited their opportunity to travel, at least part of the way, on the return trip in daylight hours; and, the late hour and consumption of alcohol affected their ability to remain awake and alert for the trip. The combination of these factors, caused by Plaintiffs and Mr. Forwood’s deviation, increased the risk that they might suffer an injury.

| ^Plaintiff attempts to distinguish Robinson, supra, which utilizes the Kern test, from the case sub judice. It is Plaintiffs position that the injury in Robinson occurred during the deviation, which increased the risk of harm, as opposed to after re-entry in the case sub judice. We find no merit to this argument considering the length of Plaintiffs deviation and the increase in risk caused by the deviation.

Our court in Campbell v. Baker, Culpep-per & Brunson, supra, in discussing Ms. Campbell’s deviation from furthering her employer’s objective by stopping to pick up fast-food on her way back to her office, stated, “[t]he distance and time factors are not great or substantial, but are minimal.” Ms. Campbell’s deviation lasted a matter of minutes, which is greatly distinguished from Plaintiffs deviation of approximately nine hours. Even though Plaintiff and Mr. Forwood were going home when the accident occurred, they had deviated from their employer’s training objective to such an extent as to greatly increase their risk of harm.

In reviewing the jurisprudence concerning re-entry, we find the case of Johnson v. Wallace Industrial Constructors, 224 So.2d 31 (La.App. 1st Cir.1969), to be somewhat similar on its face. We find, however, that the case can be distinguished from the case sub judice. In Johnson, supra, the court declined to hold a four-hour deviation by Mr. Johnson against his widow and son in their recovery for his death under the Workers’ Compensation Act. Mr. Johnson was summoned by his immediate supervisor to New Orleans from his job site in Luling. Mr. Johnson was given use of a company car to make his trip. He and his immediate supervisor discussed business over drinks and dinner and took a walk through the French Quarter, departing each other’s company at approximately 1:00 a.m. Although Mr. Johnson told his supervisor he was going to stop back by an art store they had previously visited, there is no accounting of Mr. Johnson’s activities 17from 1:00 a.m. until 5:20 a.m. when he was involved in a fatal car accident. Mr. Johnson was headed in the direction of the job site when the accident occurred. His job required that he be at the job site by 6:30 a.m.

The court in Johnson, supra, stated:

Of course, we cannot say what Mr. Johnson’s immediate purpose was at the moment of his death. We think it reasonable to assume, however, that he was returning either to his home or the job site. In any event, he was heading in that direction, and whatever may have been in mind, what he was doing was bringing him closer to the completion of his mission, and therefore, coincided with a business purpose.
We believe that an employee, whose job gives him wide latitude in carrying out his duties, can be engaged in a personal mission, and at the same time, be furthering the interests of his employer. The two interests are not mutually exclusive.

We agree with the court’s reasoning under those particular circumstances. We also agree, however, with the court’s succinct statement that, “[e]ach case of this type must be decided in the light of its own circumstances.”

We do not find, therefore, that the result in Johnson, supra, flows from the circumstances and facts of the ease sub judice. There was no evidence concerning what Mr. Johnson was doing during the 4-hour and 20 minute lapse of time between the moment he left his employer and the moment of his car accident. It would not be unreasonable to speculate that Mr. Johnson pulled over to sleep for a few hours in his car before attempting to drive back to Luling, in furtherance of his employer’s objectives. In the case sub judice,however, Plaintiff was departing Baton Rouge at a late hour, not because she had been pursuing her employer’s business until that time, but because she had been engaged in activities of a personal nature. Moreover, we do know what Plaintiff was doing during the hours of her deviation, i.e., consuming alcohol at a restaurant and in three different bars. Another issue to consider is the length of time of the deviation. In Johnson, supra, there were approximately four hours and twenty minutes of possible deviation. In |Rthe case sub judice, there are nine hours of deviation, over twice the time in Johnson, supra. We, therefore, do not find Johnson, supra, to be controlling.

Finally, Plaintiff asserts as the impetus behind her lengthy deviation the fact that, although she and Mr. Forwood were currently equals in their employment, Mr. Forwood had been her supervisor for many years and she still felt herself to be his subordinate, under his control and supervision. She asserts, therefore, that she had no control over the situation and felt obligated to continue in the deviation as long as Mr. Forwood so chose. Plaintiffs actions do not support such a conclusion. She and Ms. Weeks testified that Plaintiff, not Mr. Forwood, arranged for them to get together after the meeting. It seems illogical that Plaintiff would impose her plans on Mr. Forwood if she felt she was under his control and supervision.

We find, therefore, that Plaintiff was a willing participant in a lengthy deviation from her employer’s training objectives that substantially and unreasonably added to the risk of injury.

CONCLUSION

For the foregoing reasons, the ruling of the WCJ granting the motion for summary judgment of Defendant, Shoney’s Restaurant, and dismissing the claim of Plaintiff, Rose Searcy, is hereby affirmed. All costs associated with this appeal are cast to Plaintiff.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

|, CARAWAY, J.,

dissenting.

I respectfully dissent.

The nightlife excursions of the Shoney’s employees can easily be recognized as outside the coverage of worker’s compensation. Nevertheless, in this case, Plaintiff was not injured while on the dance floor, and even the majority acknowledges that upon beginning the return trip to Monroe, the two employees had ended their personal deviation and had again re-entered the course of their employment. That course of employment for these salaried managers, with wide discretion, had led them to drive to Baton Rouge from Monroe on the morning of April 2. The task was to be an all day employment event particularly when the eight hours of travel time were part of their employment duty. Plaintiffs testimony indicated that she was also required by her employment to be back in Monroe by the time of an early delivery to her restaurant the following morning, April 3.

After four in the afternoon as the meeting ended, Plaintiff and Forwood had already concluded a long day. They briefly drove around Baton Rouge to inspect another Shoney’s location and then decided to invite Weeks to dinner. Weeks’ status at Shoney’s was important. She was the administrative assistant to Shoney’s Louisiana Director of Operations in Baton Rouge. Plaintiffs development of a favorable relationship with Weeks was important to Plaintiffs role as a manager. Plaintiff was traveling with Forwood, her prior boss, and Forwood’s friendship with the younger, Weeks, clearly extended the night longer than prudence would allow.

With these business-related circumstances intertwined with their personal entertainment, Plaintiff and Forwood admittedly re-entered the course of their employment for their return trip home. Certainly, the majority does not hold ladinner against these employees. If Plaintiff and Forwood had commenced their four-hour return trip to Monroe at seven, eight, maybe even nine o’clock at night, an accident suffered by Plaintiff in the course of her employment due to her co-employee’s sleep, inadvertence or poor driving skill would not barr worker’s compensation recovery. If the parties had . spent the night in Baton Rouge and had the same type of accident due to For-wood’s fault the following morning returning to Monroe, Shoney’s admits worker’s compensation coverage would have applied.

A harder question yet under the majority’s analysis would have arisen if an accident due to a third party’s negligence had occurred a block from Plaintiffs home in Monroe at five in the morning on the return trip. I raise that question to demonstrate what I view as the error in the majority’s opinion. In the midst of the two-pronged test of course and scope, the majority has added in a fault notion — the increased risk of harm caused by the employees’ bad choices. This blurs the course and scope analysis in a body of law where fault is not usually a consideration.

As this court and others recognized early on in the development of law, “[n]egli-gence of an employee is not a defense to an action to recover compensation ..., except insofar as it is Comprehended within the special defenses contained in the [Act].” Liner v. Travelers Ins. Co., 41 So.2d 804, 808 (La.App. 2d Cir.1949). Those special defenses, such as drunkenness [La. R.S. 23:1081(l)(b) ] or deliberate failure to use a safety guard [La. R.S. 23:1081(l)(c) ], are not present in this case.

A few months after the Kern ruling, Daigle v. Moody, 175 La. 853, 144 So. 596 (1932) was decided by the supreme court. It is a significant case of an employee’s costly course of action which greatly increased his risk of harm. While working on a pile driving barge, the employee made a very bad choice by [ selecting to swim the river instead of using the boat provided by his employer. The supreme court found the employee in the course and scope of employment, ruling:

... If deceased had attempted to cross in one of the boats, it could hardly be said that his attempt to thus cross was not in the course of his employment. But it is held that, because he chose another means, another method of crossing which was less safe and attended with great danger, he departed from his course of employment. We do not think so.
It must be borne in mind that deceased’s purpose in crossing the river was to resume his work, his regular employment, and not to do something on the side which he was not employed to do. This is conceded, but the court says that he swam as a matter of pleasure; that he would rather swim than ride in the boat. Perhaps so, but the fact remains that his purpose was to get back across and resume his regular work, and, that being true, it matters not what method he chose to get across the river, the attempt was in the course of his employment. He was expected and required to cross the river. That was within the sphere of his employment.
* Mi *
With the sole purpose of carrying on the work he was employed to do, the deceased adopted a careless, dangerous method. His negligence added risk to the employment, but did not constitute a departure from it.

Id. at 598-599. Plaintiffs fateful attempt to return to Monroe was likewise a bad choice, but nevertheless squarely within the sphere of her employment which had taken her that day to Baton Rouge.

Even under the fault analysis given by the majority, the fact that Plaintiff was a passenger in Forwood’s vehicle makes a subtle but important difference on the choices she could make that evening. While she never complained early in the evening and was content to make the rounds with Forwood and Weeks, she was four hours away from her home and somewhat at the mercy of her driver’s decision to return home. To that extent, Plaintiffs situation is closer to those settings where an employee, being transported as a passenger by a co-employee, is not charged with the deviation from the employer’s mission by the co-employee who has control over the operation of the vehicle. See, Jagneaux v. Marquette Casualty Co., 135 So.2d 794 (La.App. 3d Cir.1961) and cases cited therein. In [4any event, the majority recognizes that the deviation in this case had ended and that both employees had re-entered the course of their employment.

The second prong of the Kern test was more recently explained by the supreme court in Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La.1992). The court said:

“The determination of whether an accident arises out of employment focuses on the character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment. An accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not engaged in the employment.”

The risk of injury due to an auto accident, though somewhat neutral in its character, was greater for the Plaintiff because her employment required that she make the long trip to and from Baton Rouge. She was returning to Monroe under the added pressure of continuing her work at Shone/s the next morning. The employees’ personal deviation for their entertainment in Baton Rouge had ended, and though their choices to re-enter the course and scope of their employment can be faulted, I would hold that compensation should not be denied.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS, and KOSTELKA, JJ.

Rehearing denied.

GASKINS and CARAWAY, JJ., would grant rehearing. 
      
      . Mr. Forwood was not intoxicated at the time of the accident.
     
      
      . Both of Plaintiff’s ankles were badly broken, requiring bone and skin grafts. She also suffered two broken vertebrae, cracked ribs and superficial head injuries which required several hundred stitches.
     
      
      . This case was not cited by Plaintiff in her brief or at oral argument.
     