     Case: 10-30635     Document: 00511519088          Page: 1    Date Filed: 06/23/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 23, 2011
                                     No. 10-30635
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FARTIMA HAWKINS,

                                                   Plaintiff-Appellant,

v.

SEAN FOWLER; STATE FARM AUTOMOBILE INSURANCE COMPANY;
UNITED STATES OF AMERICA,

                                                   Defendants-Appellees.


                    Appeal from the United States District Court
                       For the Middle District of Louisiana
                              USDC No. 3:09-CV-639


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Fartima Hawkins appeals the district court’s grant of
summary judgment in favor of the United States of America. At issue is whether
(1) Sergeant Sean Fowler, at the time of his motor vehicle accident with
Hawkins, was acting within the course and scope of employment, and (2)
whether the disputed fact that Fowler had permission to use a government
owned vehicle (GOV) constitutes a genuine issue of material fact sufficient to


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                            No. 10-30635
preclude summary judgment. We AFFIRM.
                                        I
      Early on February 5, 2008, Mardi Gras, Sean Fowler was involved in a
motor vehicle accident with Fartima Hawkins at the intersection of Harding and
Howell Boulevards in Baton Rouge, Louisiana. At the time of the accident,
Fowler was employed as a recruiter on active military status by the United
States Army and was operating a GOV. He worked in the Army Recruiting
Office in Covington, Louisiana where he had been assigned for approximately
one year prior to the accident. At no point during his tenure with the Covington
office was Fowler provided with a monetary mileage allotment or other
compensation for the commute between his home and the recruiting station.
      Prior to the accident, Fowler had worked a full day before going out
drinking with his friends. He then returned briefly to the office to gather some
belongings in preparation for the next day, which he had off for Mardi Gras. At
approximately 12:30 a.m., Fowler departed from the recruiting office and began
to drive toward his home in Baton Rouge. As he approached the intersection of
Harding and Howell Boulevards in north Baton Rouge, Fowler fell asleep at the
wheel and collided with Hawkins’ vehicle.            Police detained Fowler,
administering a breathalyser test which revealed his blood alcohol content to be
.112%, exceeding the legal limit in Louisiana.
                                       II
      We review the district court’s grant of summary judgment de novo.
Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc).
Summary judgment is proper where there is no genuine dispute as to any
material fact and where the moving party is entitled to judgment as a matter of
law. Hunt v. Cromartie, 526 U.S. 541, 552 (1999); see also Fed. R. Civ. P. 56(a).
      The potential liability of the United States under the Federal Tort Claims


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                               No. 10-30635
Act (FTCA) is limited to injury “caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment.”        28 U.S.C. § 1346(b)(1).1          To determine whether a
negligent or harmful act occurred within the course and scope of a particular
federal employee’s duty, the court must rely on the law of the state in which that
act occurred. Garcia v. United States, 62 F.3d 126, 127 (5th Cir. 1995) (en banc).
       Louisiana law provides that an employer is liable for damage caused by
employees “in the exercise of the functions in which they are employed”. LSA-
C.C. art. 2320.2 Generally, an employee’s conduct is within the course and scope
of employment if it is (1) of the kind that he or she is employed to perform, (2)
it occurs within the authorized limits of time and space of employment and (3)
it is initiated in part by a purpose to serve the employer. Orgeron v. McDonald,
639 So.2d 224, 227 (La. 1994). When an employee is involved in a motor vehicle
accident on his way to or from a fixed place of employment, as was the case here,
the “going and coming” rule generally provides that the accident occurred
outside the course and scope of employment. Id.
       In response, Hawkins first argues that the “going and coming” rule should
not apply because the accident occurred while Fowler was operating an Army
vehicle with either implied or express permission, and relies on Brooks v.
Guerrero, 831 So.2d 424, 427–28 (La. App. 5th Cir. 2002). That exception to the
“going and coming” rule is appropriate when use of the vehicle is in the




       1
       Where military personnel are concerned, “acting within the scope of his office or
employment” is considered equivalent to “acting in the line of duty.” 28 U.S.C. § 2671.
       2
        The full text of this provision reads, “[m]asters and employers are answerable for the
damage occasioned by their servants and overseers, in the exercise of the functions in which
they are employed.”


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                                       No. 10-30635
performance of an employment responsibility.3 Id. at 28. Several factors inform
that analysis, including: (1) whether the employee’s use of the vehicle benefitted
the employer, (2) whether the employee was subject to the authority of the
employer at the time of the accident, (3) whether the employee was authorized
to use the vehicle and (4) whether the worker was motivated to use the vehicle,
at least in part, by the employer’s concerns. Id.               In Brooks, the employer
permitted employees in the field to use a company vehicle during their unpaid
lunch breaks. This was done in order to alleviate the time delay presented by
employees driving back and forth to the central office to pick up their personal
vehicles for lunch. While determining those employees to be within the course
and scope of employment, that court simultaneously addressed the fact that the
employer not only expressly authorized the use of the vehicle, but that it did so
out of an interest in the effective use of its employees’ time.4
       By contrast, here there is no evidence on the summary judgment record
that Fowler’s use of the GOV was related to any employment responsibility or
of any value to the Army. Instead, the undisputed evidence demonstrates that
Fowler was going home for the Mardi Gras holiday at the time of the accident.
Accordingly, he was not acting within the course and scope of duty as a military
recruiter. While the claim that Fowler had permission to use a GOV on the

       3
         Hawkins also relies on two Louisiana worker’s compensation cases for the proposition
that an exception to the “going and coming” rule applies here. Keith v. Gelco Corp., 705 So.2d
244 (La. App. 2d Cir. 1997); Phillips v. EPCO Carbon Dioxide Products, Inc., 810 So.2d 1171
(La. App. 2 Cir. 2002). Those cases only apply if transportation is provided (either through a
vehicle or payment of expenses) as an incident to the employment agreement. Hawkins does
not contend that the Army had an employment agreement with Fowler which stipulated that
he would receive transportation for his daily commute or that the Army had any obligation to
provide Fowler’s with transportation. Therefore these cases are inapposite.
       4
        Hawkins can point to no case that supports her contention that Fowler must have
been within the course and scope of employment because the Army’s Recruiting Operations
Manual encourages recruiters to “make the best use of the 24 hours they have each day” and
to prospect relentlessly.

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                             No. 10-30635
evening of the accident is genuinely disputed, it is not material to the
determination of course and scope. As a result, no genuine issue of material fact
exists that might preclude entry of summary judgment in favor of the United
States.

      AFFIRMED.




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