By Jeff Birren, Senior Writer
In 2015 the Tampa Bay Buccaneers played the Saints in New Orleans. Following the game, off-duty New Orleans police officers and Jefferson Parrish deputy sheriffs escorted the Bucs’ busses to the New Orleans Airport. After the busses cleared an intersection, Deputy Michael Tisdale, on a motorcycle trailing the busses, made a right turn and struck another officer who was providing pedestrian traffic control. The injured officer, Terrance Bolden, and his wife, sued various defendants, including the Bucs and their insurance companies. They claimed the Bucs were vicariously liable for Tisdale’s negligence and that he was within the course and scope of his employment with the Bucs.
After discovery, the Bucs made a motion for summary judgment, asserting that Tisdale was not their employee and thus they could not be vicariously liable. The trial court denied the motion, and the appellate court denied the writ. The Bucs applied to the Louisiana State Supreme Court. It accepted jurisdiction. The Court held that “there was no employee-employer relationship between the deputy sheriff and the Buccaneers under the facts and circumstances of this case” and consequently reversed the denial of the summary judgment motion (Bolden et al v. Michael Tisdale, SMG, Newell D. Normand and Buccaneers Limited Partnership, Supreme Court of Louisiana, Number 2021-CC-00224, 2022 La. LEXIS 285, (“Opinion”), (1-28-22)).
Background
College football and professional football teams contract with local law enforcement agencies to provide security and escort service. A visiting team will be met at the airport by off-duty motorcycle officers who will accompany the team to its hotel. If the visiting squad has a two-night trip, officers will accompany the team to the stadium the day before the game for the team’s walk-through. They will then escort the team back to the hotel, and sometimes provide escort service the night before the game.
On game day off-duty officers meet the team at its hotel and escort it to the stadium. During the game the officers provide protection for the busses. When the team leaves the stadium for the airport, often two hours after the game ends, the officers again escort the busses. Sometimes the team pays the officers directly though often the team pays the relevant law enforcement agencies who in turn pay the officers for this off-duty work. The clubs get protection, and the officers hold up traffic, so the teams’ busses are not stopped by traffic lights and arrive at their destinations that much more quickly. For the officers it is a way to pick up extra income.
Bolden Case Facts
The game was played on September 20, 2015. The Bucs had written to the New Orleans Police Department (“NOPD”) “to request motorcycle escorts, by off-duty law enforcement officers, for the team’s buses” (Opinion at 6). Andres Trescastro testified in his deposition that he submitted the written request. “I give the day and times of our arrivals, our movements…. law enforcement has always taken care of how they get us there…whichever route. That’s their responsibility. I never question that, nor do I really have any say-so in how they perform their duties” (Opinion at 7).
After NOPD received the request for escort service, it sent an invoice to the Bucs. Jefferson Parrish Sheriff’s Office (“JPSO”) did so as well. A JPSO sergeant testified in his deposition that when such a request is made, the party requests the dates, time, and locations but “all requests are made subject to the discretion” of the officers (Opinion at 8). No matter what is in the request, the decision to use or not use lights and sirens will be left to the officers. Private persons or companies cannot provide that service and such escorts can only be obtained through governmental agencies. There is usually very little conversation between the officers and the team officials.
Tisdale testified that he had been a deputy sheriff for over seventeen years and had been doing motorcycle escorts since 2010. The motorcycle officers “determine the route that is to be” used though “it is a standard route that they have used for several years.” The only “personal contact” that the officers have with team personnel is when they get paid, immediately before the buses leave (Opinion at 9).
A NOPD lieutenant testified that since the route goes through Orleans Parrish and Jefferson Parrish, officers from both parishes are used. When the motorcade leaves the Superdome, he receives a call from another officer informing him that the buses have left. He then tells those officers working the intersection “to hold all traffic and pedestrians so the motorcade can pass through the intersection.” On the day of the accident all the buses had made the turn and he knew there would be one more motorcycle officer. He did not therefore release the intersection to traffic. However, Bolden “stepped into the street into the path of Deputy Tisdale’s motorcycle and the accident occurred.”
A JPSO deputy testified that motorcycle officers are assigned to an escort detail from a rotating alphabetical list. “[N]o particular officer was in charge of the detail, since they all knew what to do” (Opinion at 10). He denied that the Bucs “had anything to do with how the escort was conducted, since that was entirely up to the law enforcement officers making up the escort detail, who exclusively determined the route and other means of getting the buses to the airport.”
Another deposed officer who worked on the escort service testified that “these types of motorcycles usually follow the same route.” He denied having any contact with Bucs’ staff that day and denied “that team staffers ever have any input in choosing the route to be taken to the airport.”
The plaintiffs “introduced no evidence, in connection with the motion” though they did reference evidence submitted by defendants in a prior motion. One JPSO captain’s affidavit stated that “this off duty employment was unrelated to the police officer’s” work and “is not in the course and scope of the officer’s” regular employment”. He also declared that the motorcycle escorts were paid for by the Bucs, “complied with the Buccaneer’s instructions” as to the type of vehicle used, by adhering to the dates and times when the escort service was to be present, and by “being at the locations designated” and by “making payment for the services rendered” (Opinion at 11).
After rejection in the district court and the appellate court, the Supreme Court accepted the Bucs’ writ. The fundamental question was whether Deputy Tisdale was a Bucs’ employee or an independent contractor.
The Court’s Analysis
The Court uses a de novo standard of review on summary judgment motions. This is “the same criteria” as in the district court. The district court should grant the motion if “there is no genuine issue as to material fact and the movant is entitled to judgment as a matter of law” (Opinion at 12). Although the burden of proof “rests with the mover”, if the mover will not bear the burden of proof at trial, then the burden is “to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action or defense.”
The question was “whether any material questions of fact remain” (emphasis in the original.) The Bucs argued that the evidence showed only that they requested a motorcycle escort on the specific dates and times, “along with several other requests as to the number of motorcycles” and “uses by the motorcycle officers of lights and sirens” (Opinion at 13).
The “single most important factor to consider in deciding whether the employer-employee relationship exists…is the right of the employer to control the work of the employee.” The “status of an independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants.” The principal test is not whether the employer “actually exercised” control but whether “the right to do so exists” (Opinion at 14). The status of employee or independent contractor “is a factual determination to be decided upon on a case-by-case basis.”
The evidence “established” that the law enforcement agencies “select the individuals who will work on the escort details and in what capacity.” JPSO also “requires all of its motorcycle officers to accept escort assignments” unless there is a valid family or medical excuse. The evidence also showed that both NOPD and JPSO sent invoices to the Bucs. Furthermore, although the officers testified that “they made every effort to accommodate any requests” “the officers nevertheless decided independently whether to grant, deny, or modify such requests based on their own safety evaluations.” The “totality of the evidence” “demonstrated that the relationship” “was more akin to that of independent contractors, rather than employees, since the Buccaneers did not select or hire the individual officers.” Finally, the Bucs did not always make direct payments to the officers, nor did they control the methods employed by the officers in conducting the motorcycle escort.
Based on this showing, the plaintiffs were required to produce factual support to establish a genuine issue of material fact regarding whether Tisdale became a Bucs’ employee. The adverse party may not rest on “the mere allegations or denials of his pleadings” but “must set forth specific facts showing that there is a genuine issue for trial” (Opinion at 15). If this does not happen, summary judgment is appropriate. The “plaintiffs filed no supporting documents” relying on the previously mentioned JPSO captain’s affidavit. He declared that it was the policy of JPSO “to comply with the instructions” of the entity requesting the motorcade. However, his affidavit did “not directly contradict the deposition testimony of other officers regarding when they could not honor such requests.”
The plaintiffs also relied on cases wherein off-duty officers performed “private duty premises security” (Order at 16, emphasis in the original). In those situations, the hiring entity “must necessarily have greater control over the work performed by the officer.” Conversely, the governmental entities have exclusive control over public thoroughfares” so that a motorcycle escort “cannot relinquish control over the public roadways over which the motorcade travels to the private entities who request” the escort.
The Court held that “[b]ased on the foregoing, we conclude that the district erred” in failing to grant the motion. The Bucs “did not become the employer of Deputy Tisdale merely because the deputy participated in the motorcycle escort” for the team. The plaintiffs “failed to show” that “they would be able to bear their burden at trial to prove that the alleged tortfeasor, Deputy Tisdale, was an employee of the Buccaneers.” Summary judgment “should have been granted.” The Court remanded the case to the district court to enter judgment in favor of the Bucs and three of their insurance companies.
Conclusion
This same scenario goes on in the United States multiple times every week as football teams travel to and from airports, hotels, or stadia during the season. Although this case turned on its specific facts, the arrangements are similar whenever football teams travel. It should serve as a warning to clubs to avoid creating a question of fact by making sure that they do not attempt to control the officers. The Bucs won the game in 2015, and six years later, the ensuing case.
