* Concurring in the judgment only.

** 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 96-31281

__________________________

MOSES COOPER &

LOUISE COOPER,

Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Middle District of Louisiana

(No. 95-811)

___________________________________________________

June 11, 1998

Before WIENER, EMILIO M. GARZA, * and BENAVIDES, Circuit Judges.

PER CURIAM: **

Plaintiffs-Appellants Moses Cooper and Louise B. Cooper,

husband and wife (the Coopers), appeal the district court’s grant

of judgment as a matter of law (j.m.l.) in favor of Defend antAppellee Wal-Mart Stores, Inc. (Wal-Mart) on their personal injury

claims. The Coopers brought suit after Mr. Cooper tripped while2

passing through an exit aisle occupied by a Wal-Mart employee who

was purchasing a bicycle. Claiming that the employee pushed the

bicycle in Mr. Cooper’s path, causing him to fall and sustain

injuries, the Coopers sought to hold Wal-Mart (a) vicariously

liable for the employee’s negligence and (b) independently liable

for its own negli gence. At the close of the Coopers’ case, WalMart orally moved for j.m.l. on the ground that the employee’s

actions in purchasing the bicycle were not taken in the course and

scope of her employment; consequently, the Coopers had not made out

a case of respondeat superior as a matter of law. The court

granted the motion and the Coopers took this appeal from the

distric t court’s order dismissing their claims with prejudice.

They contend that the magistrate judge (a) misapplied Louisiana

law, and (b) improperly weighed the evidence adduced at trial. The

Coopers also contend that the court erred in dism issing their

direct negligence claim against Wal-Mart as it did not move for

j.m.l. on that claim. Finding no merit in the Coopers’ position,

we affirm.

I

FACTS AND PROCEEDINGS

The Coopers went to the Wal-Mart pharmacy to purchase insulin

for Mr. Cooper’s diabetic condition. Realizing that they did not

have enough money to pay for the medicine, they attempted to leave

the store through an aisle between the customer service desk and a

cash regist er. Mrs. Cooper testified that two customers were3

standing at the cash register waiting to “check out” and two WalMart employee s were standing at the service desk. One of the

e mployees, Emma Deggs, was purchasing a small bicycle for her

daughter. The other employee, Gloria Germany, was obtaining a

“price check” for a customer. According to Mrs. Cooper, Deggs and

Germany were engaged in a conversation about the bicycle as the

Coopers approached the aisle.

Mrs. Cooper stated that, just as she was passing the register

and speaking to Germany about the bicycle, Deggs pushed it into Mr.

Cooper’s path by “fooling with” some tags on the bike’s handlebars.

Mr. Cooper, who had been following his wife, tripped and fell over

the bike’s training wheels, injuring his right knee. The store’s

assistant manager, David Bayhem, was notified of the accident and

helped Mr. Cooper up off the floor. He did not offer to assist the

Coopers in obtaining me dical treatment. Mrs. Cooper further

testified that Deggs picked the bike up and moved it closer to the

service desk following the accident.

The Coopers proceeded to a nearby emergency room where a

physician examined Mr. Coop er’s knee, gave him some pain

medication, and recommended that he seek additional treatment from

his primary care physician. Mr. Cooper subsequently underwent knee

surgery, which required several months of additional treatment and

recuperation.

The Coope rs filed suit in state court, contending that WalMart was both independently and vicariously liable for Mr. Cooper’s4

injury. Wal-Mart removed the case to federal court, predicating

federal jurisdiction on diversity of citi zenship, and the matter

proceeded t o trial before a magistrate judge pursuant to the

district judge’s Order of Reference. At the close of the Cooper’s

case, Wal-Mart orally moved for j.m.l. under Rule 50(a) of the

Federal Rules of Civil Procedure on the following ground:

There is no basis

. . . for this case to go to

the jury on the issue of Wal-Mart’s liability

on the theory that has been advanced . . . by

plaintiff, tha t is, that an employee in the

course and scope of their employment undertook

some activity that was negligent that caused

the plaintiff harm.”

In support of its motion, Wal-Mart argued that Deggs

—— the

only employee alleged to have been responsible for the accident

——

purchased the bicycle during her lunch break, after “clocking out”

her time card. According to Wal-Mart’s time clock activity report,

Deggs clocked out for lunch at 12:12 p.m. on the day of the

incident. In his accident investigation report, Bayhem determined

that Mr. Cooper’s fall occurred at 12:20 p.m. Because Deggs was

off duty, urged Wal-Mart, she could not have be en acting in the

course and scope of her employment when she was purchasing the

bike.

The Coopers responded by arguing that Deggs’s off-duty status

did not preclude a course and scope of employment finding. Her

off-duty status, urged the Coopers, was a function of Wal-Mart’s

employee discount program. Wal-Mart requires its employees to

clock out before making purchases under the program. Thus, the5

fact that Deggs had clocked out did not indicate that she was on a

p ersonal errand; she was simply complying with company policy.

And, continued the Coopers, because that policy induces employee

purchases, which in turn benefits Wal-Mart by increasing its sales,

employee action of the type here at issue is taken in furtherance

of Wal-Mart’s business. Any negligence associated with such

action, urged the Coopers, should therefore be attributable to WalMart.

Th e magistrate judge rejected the Coopers’ position and

granted the motion, finding that because Deggs had clocked out

prior to making her purchase, she was acting in the capacity of a

customer rather than as an employee. As such, Wal-Mart could not

be held liable under the theory of respondeat superior. The court

reasoned that discount-induced employee purchases are not

sufficiently intertwined with a Wal-Mart employee’s job duties as

to be considered in the course and scope of Wal-Mart employment;

any benefit Wal-Mart derives from the program is indirect. In

fact, Wal-Mart’s off-the-clock policy, rather t han indicating a

connection with employment duties, suggests that employee purchases

are to remain distinct from job performance. The Coopers timely

appealed.

II

ANALYSIS

A. S TANDARD OF R EVIEW

We review a motion for j.m.l. de novo

, applying the same legal1 Omnitech Int’l, Inc. v. The Clorox Co.

, 11 F.3d 1316, 1322-23

(5th Cir. 1994).

2 Id. at 1323.

3 Id.

4 Id

. (quoting I n re Letterman Bros. Energy Sec. Litig.

, 799

F.2d 967, 972 (5th Cir.1986)).

6 standard as did the trial court. 1 In evaluating such a motion, we

view the entire trial record in the light most favor able to the

non-movant, and draw all inferences in its favor. 2 If the evidence

at trial points so strongly and overwhelmingly in the movant’s

favor that reasonable jurors could not reach a contrary conclusion,

we will conclude that the motion should have been granted. 3 The

“decision to grant [j.m.l.] . . . is not a matter of discretion,

but a conclusion of law based upon a finding th a t there is

insufficient evidence to create a fact question for the j u ry.” 4

B. E XISTENCE OF M ATERIAL F ACT I SSUES

The Coopers argue that the magistrate judge imp roperly made

factual findings in entering a judgm ent against them on their

vicarious liability claim. Specifically, they insist, the court

erred in determining that (1) Deggs was the employee that tripped

Mr. Cooper, and (2) she was off duty when she purchased the bike.

The Coopers contend that the court’s finding that Deggs was the

employee who tripped Mr. Cooper improperly foreclosed an inquiry

i nto the actions of other employees, which actions could have

satisfied the course and sc ope of employment predicate for Wal-5 See infra notes 8-9 and accompanying text.

7 M art’s vicarious liability. 5 Likewise, contend the Coopers, the

court’s determination that Deggs was off duty simila rly impeded

their ability to es tablish that the tortious conduct in question

occurred in the course and scope of Deggs’s Wal-Mart employment.

In support of their contention that a factual dispute over the

responsibl e employee’s identity existed at trial, the Coopers

invite our attention to evidence that: (1) Deggs disavowed any

knowledge of the accident, claiming that she purchased the bike and

left the store without incident, (2) Mr. Cooper testified that

Germany was the employee at fault, and (3) Bayhem testified that

Deggs was not present when he arrived at the accident scene.

With respect to Deggs’s on/off-duty status, t he Coopers

suggest that the time line created by the evidence adduced at trial

contradicts Bayhem’s 12:20 p.m. estimate of the accident time. The

Coopers der ive a contradiction from the facts that (1) emergency

room records indicate th at the Coopers arrived for treatment at

12:38 p.m.

—— a “mere” differen ce of eighteen minutes —— and (2)

Deggs testified that it took her fifteen minutes to purchase the

bike. From these fact, the Coopers infer that Deggs attempted to

purchase the bike before clocking out at 12:12 p.m. Moreover, note

the Coo pers, Mrs. Cooper testified that the accident occurred at

noon, directly contradicting Bayhem’s testimony.

Our review of the record reveals that the Coopers have8

advanced these purported evidentiary conflicts disingenuously,

“cherry picking” favorable excerpts from witness testimony and at

times flatly mischaracterizing the evidence. Indeed, the Coopers

have changed their theory o f the case on appeal in an apparent

hindsight effort to conjure up material questions of fact worthy of

a jury’s consideration where none exist.

From the outset of their case, the Coopers made it clear that

their focus was exclusively on Deggs’s conduct. In their opening

statement they announced to the jury: “We believe that the evidence

will demonstrate clearly that [Deggs], unfortunately, negligently,

and carelessly, moved this bicycle into [Mr. Cooper’s] passageway

[sic] a nd caused him to fall and get hurt.” The Coopers never

expressed doubt as to the identity of the responsible employee.

And when Wal-Mart’s motion for j.m.l. was argued, the Coopers did

not attempt to defeat t he motion by suggesting that material

questions of fact surrounded the identity of the culpable employee

so that, as a result, deciding the case as a matter if law would be

inappropriate.

But the Coopers now seize o n Mr. Cooper’s testimony that

Germany

—— the Wal-Mart employee who was obtaining a price check at

the service desk

—— was the bike-pushing culprit. It is clear,

from Mr. Cooper’s remaining testi mony, however, that he had

forgotten or was otherwise uncertain of the employee’s name but at

all t imes believed that the employee purchasing the bike (Deggs)6 Mr. Cooper originally testified, albeit with some

reservation, that Germany moved the bike into his path:

Q: All right. Was the lady —— who was handling the —— who

moved the bicycle?

A: I believe that was

—— let me see. I think that was

[Germany].

His subsequent testimony, however, makes it clear that he intended

to identify Deggs:

A: I was going out the store to go get some money, but the

lady that were buying t he bicycle, when I got close, the bike

trying to move back right in front of me. My feet got tangled up

in the back wheel. I just went on over with it.

* * *

Q: [On cross-examination:] Mr. Cooper ——

A: Yeah.

Q: —— the lady that had ——

A: The bicycle.

Q: —— the bicycle ——

A: Yeah.

Q: —— as you were walking out ——

A: I was walking out.

Q: —— were you passing in front of her or behind her?

A: Behind her.

Q: Okay. And she had her back to you as you were walking ——

A: Yeah.

Q: —— out, is that fair?

A: Yeah, and she was fooling with the bicycle taking

9 was the party at fault. 6 Moreover, Mrs. Cooper testifiedsomething off the bike and the bike went to ——

* * *

10 unequivocally that Deggs was responsible. And, although Deggs

denied any involvement in the accident and Bayhem claimed that she

was absent from the scene, such testimony merely called the

credibility of those witnesses into question rather than creating

a fact issue.

Likewise, the Coopers have made the question of Deggs’s onduty status an issue for the first time on appeal. In defending

against Wal-Mart’s j.m.l. motion in the district court, the Coopers

conceded that Deggs was off the clock when the accident occurred

but argued that this fact was not dispositive. Furthermore, in

lifting snippets of evidence from the record on a heretofore

uncontested issue, the Coopers have mischaracterized witness

testimony. They claim that Mrs. Cooper testified that the accident

took place at 12:00 p.m. when, in reality, the record is clear that

she testified that the incident occurred at “ about twelve o’clock.”

As such, her testimony does not contradict Bayhem’s 12:20 p.m.

estimate.

The Coopers also fail to present in an accurate light Deggs’s

testimony concerning the amount of time it took her to purchase the

bicycle. Although she had previously estimated a fifteen-minute

interval, she had done so with the caveat that she could not7 See L A

. C IV

. C ODE A NN

. art. 2 320 (West 1997) (“Masters and

employees are answerable for the d amages occasioned by their

servants and overseers, in the exercise of the functions in which

they are employed.”).

8 Baumeister v. Plunkett , 673 So.2d 994, 996 (La. 1996).

11 remember the time frame. Moreover, she had also previously given

a five-to-ten-minute estimate. At trial, Deggs was asked which

estimate was more a ccurate and she responded that it took her no

longer than five to ten minutes to purchase the bike. In addition,

without evidence of the emergency room’s location —— and there is

none in the record

—— no contradictory inferences can be drawn from

the eighteen mi nute interval between the putative 12:20 p.m.

accident time and the Coopers’ 12:38 p.m. emergency room arrival.

Our review of the entire record leads to the conclusion that

no material questions of fact existed with respect to these issues.

Our conclusion is bolstered by the Coopers’ failure to insist

otherwise at trial.

C. V ICARIOUS L IABILITY

The concept of vicarious liability is embodied in article 2320

of Louisian a’s Civil Code. 7 An employer is liable under article

2320 for the tortious conduct of its employees committed in the

course and scope of their employme nt. 8 The answers to four

questions are dispositive: “(1) whether t he tortious act was

primarily employment rooted; (2) whethe r 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)9 Id. at 99 6-97 (citing L ebrane v. Lewis

, 292 So.2d 216, 218

(La. 1974)).

10 Benoit v. Capital Mfg. Co. , 617 So.2d 477, 479 (La. 1993).

11 Id. (quoting Lisonbee v. Chicago Mill and Lumber Co.

, 278

So.2d 5, 7 (La. 1973)).

12 Lebrane , 292 So.2d at 218.

13 Ermert v. Hartford Ins. Co.

, 559 So.2d 467, 478 (La. 1990).

12 whether it occurred during the hours of employment.” 9 The c ourse

of employment aspect of the inquiry refers to time and place (the

third and fourth factors), whereas the scope of employment aspect

refers to the employment-related risk of injury (the first and

second factors). 10 “A strong showing by the claimant with reference

to the arise-out-of requirement may compensate for a relatively

weak showing on the during-the-course of requirement, or vice

versa.” 11

In Lebra ne —— Louisiana’s seminal case on vicarious

liability

—— the scope and course of employment test was phrased

thusly:

[Whether] the tortious conduct of the

[employee is] so closely connected in time,

space, and causation to his employment duties

as to be regarded a risk of harm attributable

to the employer’s business, as compared with

conduct motivated by purely pe rsonal

considerations entirely extraneous to the

employer’s interests. 12

In negligence cases, the court need only determine whether the

employee’s general activities at the time of the tort were within

the course and scope of his employment. 1314 See supra note 11 and accompanying text.

15 W attik v. Lewis Grocer Co. , 476 So.2d 444 (La. Ct. App.

1995); Dismuke v. Quaynor

, 637 So.2d 555 (La. Ct. App. 1994);

Johnson v. Gant

, 60 6 So.2d 854 (La. Ct. App. 1992); G uidry v.

Freeman , 555 So.2d 588 (La. Ct. App. 1989).

13 The Coopers argue that the court erred in granting Wal-Mart’s

motion for j.m.l. by placing undue emphasis on Deggs’ off-duty

status in the course and scope of employment calculus. According

to the Coopers, the court mistakenly believed that all four factors

under that rubric m ust be established to produce vicarious

liability. 14 The Coopers urge that, although Deggs’s off-duty

status weakened the scope of employment showing, the course of

employment factors were sufficiently strong to allow the issue to

go to the jury. In support of their position, the Coopers cite

several cases purported to hold employers vicariously lia ble for

the tortious conduct of off-duty employees. 15

We disagree with the Coopers’ characterization of the

magistrate judge’s ruling. The court’s decision to grant WalMart’s motion turned not on the on-duty/off-duty distinction, but

on the fact that while Deggs was off duty, she was attending to a

purely personal matter while on her lunch break

—— purchasing a

bicycle for her daughter’s birthday. Even though the cases relied

upon by the Coopers im pose vicarious liability for off-duty

employee c onduct, the conduct in those case was nonetheless

actuated, to an appreciable extent, by the purpose of serving the16 See Ermert

, 559 So.2d at 477 (“If the purpose of serving the

master’s business actuates the servant to any appreciable extent,

the master is subject to liability if the act is otherwise within

the service. So also, the act may be found to be in the service if

not only the manner of acting but the act itself is done largely

for the servant’s pu rposes.”) (citations omitted); W attik

, 476

So.2d at 447 (holding employe r vicariously liable for employee’s

actions in assaulting two brothers parke d in a car outside

employer’s business even though employee clocked himself out before

committing the tort, but noting that the altercation which provoked

the tort was employment-rooted as it was “reasonably incidental to

the performance of the employee’s duties of sweeping or blowing off

the sidewalk and in requesting the plaintiff’s to remove their

vehicle out of the fire lane.”); Dismuke

, 637 So.2d at 561 (finding

no clear error in the lower court’s determination that a university

employee was acting within the scope of his employment when he

raped a young girl that was attending camp at the university even

though the employee was technically off duty, but noting that the

employee was engaged in employment-related activity when the rape

occurred); Gant ,606 So.2d at 861 (holding employer liable for offd uty policeman employee’s conduct in killing a bystande r by

accidentally discharging his pistol during a telephone c all, but

noting that “[b]y entering the station, telep honing Ms. Gunn and

manipulating his pistol, [the policeman] was engaged to some

appreciable extent in law enforcement activity and his motivation

was not purely personal[.]”); Guidry

, 555 So.2d at 593 (holding

employer truck company vicariously liable for the negligent acts of

its employee truck driver in injuring a bystander during a

b asketball game, but noting that “[t]he accident which injure d

[plaintiff] was job-related

. . . . The basketball activity was

intended to solicit customers for [the employer] and to entertain

[its] customers and employees while waiting for loads.”).

17 The Coopers also urge that the court failed to follow Ermert

by focusing on Deggs’s specific activity at the time of Mr.

Cooper’s accident

—— purchasing a bicycle

—— rather than on her

general activity

—— negligently moving merchandi se in the exit

aisle. S ee supra

, note 13 and accompan ying text. The Coopers

misread Ermert

, however, inasmuch as their categorization under the

distinction is backwards: Deggs’s general activity was the purchase

14 employer’s business. 16 As Deggs’s motivation was purely personal

and entirely extraneous to her service as a Wal-Mart employee, we

cannot say that the court erred in finding the scope of employment

showing to be so weak as to warrant judgment as a matter of law. 17of the bicycle. Ermert , 559 So.2d at 478-79.

15 D. D ISMISSAL OF N EGLIGENCE C LAIM

The Coopers argue that, inasmuch as Wal-Mart did not move for

j.m.l. on the Coopers’ direct negligence claim, the district court

erred when it entered judgment as a matter of law on that claim.

And even assuming that Wal-Mart moved for the dismissal of their

negligence claims, contend the Coopers, judgment as a matter of law

was inappropriate because sufficien t evidence was adduced from

w hich the jury could have reasonably inferred Wal-Mart’s own

negligence. Although the Coopers’ theory of Wal-Mart’s independent

negligence is unclear, they appear to predicate Wal-Mart’s direct

liability on its failure (a) to protect Mr. Cooper from the

injuries occasioned by Deggs’s missteps during her purchase of the

bicycle, and (b) to provide its customers with a safe passageway

through which to exit the store.

Our review of the record reveals that, as with the Coopers’

vicarious liability contentions, their direct liability claims are

urged in a surreptitious effort to breathe new life into their case

by challenging issues that were at best peripheral at trial. We do

not find that the Coopers’ arguments with respect to this issue

merit a discussion; they are contrived and unfounded under the case

law. Again, we note that they did not raise the issue of direct

liability as a means of avoiding dismissal when Wal-Mart sought a

j.m.l. at the close of the Coopers’ case in chief.16 III.

CONCLUSION

For the foregoing reasons, the judgment of the district court

is, in all respects affirmed.

AFFIRMED.