HUGHES, J.

On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Caddo

Crichton, J., additionally concurs and assigns reasons: Genovese, J., additionally concurs for the reasons assigned by Justice Crichton and Justice Crain.

Crain, J., concurring, Griffin, J., additionally concurs for the reasons assigned by Justice Crichton and Justice Crain 

HUGHES, J.

At issue in this motion for partial summary judgment is whether a plaintiff may pursue both a negligence cause of action against an employee for which the employer is vicariously liable and a direct claim against the employer for its own negligence in hiring, supervision, training, and retention as well as a negligent entrustment claim, when the employer stipulates that the employee was in the course and scope of employment at the time of the injury. We hold that a plaintiff can maintain both claims even if the employer has stipulated to the course and scope of employment. We therefore reverse the partial summary judgment in favor of the employer which dismissed the claims asserted directly against it, and remand to the district court.

FACTS AND PROCEDURAL HISTORY

Plaintiff Reginald Martin named truck driver Rodney Thomas, his employer Greer Logging, LLC, and its insurer National Liability and Fire Insurance Company as defendants in this personal injury case. The plaintiff alleges that he and defendant Thomas were involved in a collision on South Purdue Street in Vivian, Louisiana at  8:27 p.m. on December 17, 2016. The plaintiff was driving a 2004 Honda Accord. Defendant Thomas was operating a 2016 Peterbilt tractor truck owned by Greer Logging. The plaintiff alleges Thomas was backing into a driveway.

The plaintiff alleges that following the accident he suffered from several injuries including head/facial contusions, multiple broken ribs, a fractured sternum, an open fracture of the tibial plateau, an open comminuted fracture of his left patella, and open wounds of the left leg, knee, and ankle. He also alleges mental anguish and distress in his petition.

The plaintiff’s initial petition, filed April 4, 2017, alleged only negligence on the part of driver Thomas. In their answer, the defendants admitted that Thomas was at all pertinent times in the course and scope of his employment with Greer Logging, LLC.

The plaintiff filed a supplemental and amending petition on July 16, 2020. The amended petition added causes of action against Greer Logging for negligent hiring, supervision, training, and retention as well as a negligent entrustment claim (hereinafter “direct negligence claims”). Specifically, the plaintiff alleged negligence on the part of employer Greer Logging for its failure to do a thorough background check on Thomas; to check employment and personal references; to check employment history and attempt to speak with former supervisors; to check driving records and history prior to hiring him; to establish and enforce proper employee screening; in hiring him despite his incompetent driving record; to train him about proper driving; to train him regarding backing the tractor trailer; to train him regarding the proper use of spotters; to train him how to be attentive and do what he should have done or see what he should have seen in order to avoid the accident; to supervise him; for negligent entrustment of the vehicle despite the knowledge that he was an incompetent driver; and for negligent entrustment of the vehicle to him despite actual or constructive knowledge that he would drive the  tractor trailer in a negligent, reckless, or careless manner, while knowing that he was likely to use the vehicle in a manner involving an unreasonable risk of physical harm to other drivers.

The defendants filed a motion for partial summary judgment seeking dismissal of the claims asserted in the amended petition. They argued that because course and scope of employment had been admitted, under Louisiana jurisprudence, a plaintiff cannot maintain direct negligence claims against an employer while also maintaining a claim against an employee for which a plaintiff seeks to hold the employer vicariously liable.

The trial court granted the defendants’ partial motion for summary judgment, dismissing with prejudice the claims raised in the amended petition. Plaintiff filed a devolutive appeal, and the court of appeal affirmed. Martin v. Thomas, 54,009 (La.App. 2 Cir. 8/11/21), 326 So.3d 334.

LAW AND ANALYSIS

This court applies a de novo standard of review in considering lower court rulings on summary judgment motions. Bufkin v. Felipe’s La., LLC, 14-288, p. 3 (La. 10/15/14), 171 So.3d 851, 854; Catahoula Par. Sch. Bd. v. La. Mach. Rentals, LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065, 1071. Thus, we use the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Id. Pursuant to Louisiana Code of Civil Procedure article 966(A)(3)-(4), a court must grant a motion for summary judgment if the pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions show that there is no genuine issue of  material fact and that the mover is entitled to judgment as a matter of law. Bufkin, 14-0288 at p. 3, 171 So.3d at 854; Catahoula, 12-2504 at p. 8, 124 So.3d at 1071. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by art. 969; the procedure is favored and shall be construed to accomplish these ends. La. Code Civ. Proc. art. 966(A)(2). A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. La. Code Civ. Proc. art. 966(E).

The burden of proof rests with the mover; nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather 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. La. Code Civ. Proc. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. “When a motion for summary judgment is made and supported as provided [in La. Code Civ. Proc. art. 967(A) , an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided [in La. Code Civ. Proc. art. 967(A)], must set forth specific facts showing that there is a genuine issue  for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.” La. Code Civ. Proc. art. 967(B).

Applicant-plaintiff argues to this court that dismissing his direct negligence claims against Greer Logging is in contravention of various Louisiana Civil Code articles including those that require the fault of all persons contributing to the plaintiff’s injury be quantified by the jury and those that require employers to be liable for damage caused by employees as well as general tort principles.

The defendants argue that when an employer admits that its employee was acting in course and scope at the time of the accident, direct negligence claims against the employer are “subsumed” by the driver’s negligence and fault for which the employer will be vicariously liable.

This case presents an issue of first impression for this court. As always, we begin our analysis by looking at all relevant legislation as legislation is superior to any other source of law. Willis-Knighton Med. Ctr. v. Caddo Shreveport Sales &Use Tax Comm’n, 04-473, p. 34 (La. 4/1/05), 903 So.2d 1071, 1092 (citing La. Civ. Code art. 2). “[T]he paramount consideration in statutory construction is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27 (citing State v. Johnson, 03-2993, p. 12 (La. 10/19/04), 884 So.2d 568, 575). It is well established that “[t]he starting point for the interpretation of any statute is the language of the statute itself.” Dejoie v. Medley, 08-2223, p. 6 (La. 5/5/09), 9 So.3d 826, 829. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further interpretation made in search of the Legislature’s intent. Dejoie, 08-2223 at p. 6, 9 So.3d at 829; La. Civ. Code art. 9; La. R.S. 1:4. In the event the language of a statute is susceptible of different meanings, the interpretation must best conform to the purpose of the law. C.C. art. 10. When  analyzing legislative history, it is presumed the Legislature’s actions in crafting a law were knowing and intentional. M.J. Farms, 07-2371 at pp. 13-14, 998 So.2d at 27. More particularly, this court must assume the Legislature was aware of existing laws on the same subject, as well as established principles of statutory construction and the effect of their legislative acts. Id.

Louisiana Civil Code art. 2315(A) provides:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Louisiana Civil Code art. 2316 provides:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Thus, a plaintiff is allowed to assert a claim against a party who has caused him or her harm.

Louisiana’s Code of Civil Procedure establishes a system of fact pleading. La. Code Civ. Proc. art. 891. So long as the facts constituting a cause of action are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the “theory of the case” doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished. First S. Prod. Credit Ass’n v. Georgia-Pac., 585 So.2d 545, 548 (La. 1991). This allows a plaintiff to recover under whatever legal theory is appropriate based on the facts pleaded. Perkins v. Scaffolding Rental &Erection Serv., 568 So.2d 549, 553 (La. 1990). Further, Louisiana Code of Civil Procedure art. 892 provides for pleading two or more causes of action in the alternative, “even though the legal or factual bases thereof may be inconsistent or mutually exclusive.”

The tort of negligent hiring was expressly recognized by this court in Roberts v. Benoit as cognizable under Louisiana fault principles embodied in Civil Code article 2315. Roberts, 605 So.2d 1032 (La. 1991). In Roberts, this court noted that  common law jurisprudence views a claim that is subject to respondeat superior and a claim of negligent hiring as distinct:

The former is based on the [employee’s] negligence, which is imputed to the [] employer; the latter is based upon the employer’s independent negligence in hiring, commissioning, training and/or retaining the [employee]. These two theories of liability are separate and independent.

Roberts, 605 So.2d at 1037. Likewise, negligent entrustment has also been recognized as a cause of action in Louisiana. See, e.g., Stokes v. Stewart, 99-0878 (La.App. 1 Cir. 12/22/00), 774 So.2d 1215.

In this case the plaintiff alleges both the employer and the employee were negligent. Concerning respondeat superior, Louisiana Civil Code art. 2317 provides in part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

n addition, Louisiana Civil Code art. 2320 provides in part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

In the above cases, responsibility only attaches, when the masters or employers . . . might have prevented the act which caused the damage, and have not done it.

The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

Thus, the law states that an employer is not only responsible for his or her own tortious conduct but also for that of an employee in the exercise of the function of the employment.

Furthermore, Louisiana Civil Code art. 2323(A) provides:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

Louisiana Civil Code art. 2324(B) provides:

If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.

Louisiana Code of Civil Procedure art. 1812, titled “Special Verdicts,” provides in part:

C. In cases to recover damages for injury, death, or loss, the court at the request of any party shall submit to the jury special written questions inquiring as to:

(1) Whether a party from whom damages are claimed, or the person for whom such party is legally responsible, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so: (b) The degree of such fault, expressed in percentage. ***

(3) If appropriate, whether there was negligence attributable to any party claiming damages, and, if so:

(a) Whether such negligence was a legal cause of the damages, and, if so:

(b) The degree of such negligence, expressed in percentage.

In Thompson v. Winn-Dixie Montgomery, Inc., a plaintiff filed suit against a grocery store, which in turn filed a third-party demand against a cleaning service contracted to provide floor care and janitorial services to the grocery store. Thompson, 2015-477, p. 1 (La. 10/14/15), 181 So.3d 656, 658-59. The cleaning service filed a third-party claim against its subcontractor for those services. Id. at p. 1, 181 So.3d at 659. The jury returned a verdict in favor of the plaintiff, finding the subcontractor 70 percent at fault and the grocery store 30 percent at fault. Id. On appeal, the court amended the district court’s judgment, holding that the grocery store was statutorily 100 percent at fault, referencing La. R.S. 9:2800.6, which provides for the duty and burden of proof in a negligence case against a merchant. Id. at p. 4, 181 So.3d at 660. In reversing the court of appeal, this court wrote:

[T]he language of Articles 2323 and 2324 clearly and unambiguously provides that comparative fault principles apply in “any action for damages” and apply to “any claim” asserted under “any law or legal doctrine or theory of liability.” It is indisputable that under the express provisions of La. C.C. art. 2323, 100% of the causative fault for a harm must be allocated in actions for an injury under any theory of liability. See H. Alston Johnson, 12 La. Civ. L. Treatise, Tort Law §§ 8.5 &16.29 2d ed.). As this court squarely held in Dumas, 828 So.2d at 53739, Articles 2323 and 2324 require that each actor be assigned an appropriate percentage of fault regardless of the legal theory of liability asserted against each person, and that each joint tortfeasor is only liable for his degree of fault…. “The fundamental purpose of Louisiana’s comparative fault scheme is to ensure that each tortfeasor is responsible only for the portion of the damage he has caused.” Miller v. LAMMICO, 07-1352 (La.1/16/08), 973 So.2d 693, 706. Statutory duties imposed on one tortfeasor do not excuse joint tortfeasors from the consequences of their own negligent acts.

Thompson , pp. 9-10, 181 So.3d at 664.

Under Louisiana’s pure comparative fault regime, the negligence “of all persons,” including those not in the litigation, those without the ability to pay, and the injured victim him- or herself, “shall” be assigned a percentage of fault. La. Civ.  Code art. 2323; La. Code Civ. Proc. art. 1812. In addition, a joint tortfeasor cannot be liable for more than his or her degree of fault. La. Civ. Code art. 2324. It is possible that an employer and an employee may both be assigned a percentage of fault, depending on the facts. An employer will still be financially responsible for an employee’s percentage of fault if the employee was in the course and scope of employment. The initial assessment of fault required by the law is not bypassed due to the employer-employee relationship.

The assessment of fault shall be made first as required by law. If any fault is assessed to the employee, and if it is determined that the employee was in the course and scope of the employment, then the employer becomes financially responsible for the employee’s fault under the theory of respondeat superior. This societal decision as to who actually pays does not change the manner of assessing fault to all parties as required by law.

It has been noted that the rule that the defendant would have us adopt is a relic of contributory negligence that is not compatible with a comparative fault regime. Natalie R. Earles, Stipulating Vicarious Liability to Avoid Direct Negligence Claims: Why This Relic of the Past Should be Abandoned in Louisiana, Louisiana Law Review (Mar. 28, 2022, 2:00 P.M.), https://lawreview.law.lsu.edu/2021/10/27/ stipulating-vicarious-liability-to-avoid-direct-negligence-claims-why-this-relic-of-the-past-should-be-abandoned-in-louisiana.

Louisiana Civil Code art. 2323 was rewritten in 1979 to “eliminate the judicially created rule that contributory negligence was a complete bar to the plaintiff’s recovery, and to substitute a procedure by which any negligence on the part of the plaintiff would operate as a percentage reduction of his recovery.” Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132 (La. 1988). Under contributory negligence principles, if a plaintiff is assigned any percentage of fault by the fact-finder, that plaintiff cannot recover. Under comparative fault, the fault of  the plaintiff mitigates damages but does not defeat them entirely. As noted by another jurisdiction, the rule precluding a plaintiff from bringing direct negligence claims against an employer who has admitted course and scope “loses much of is force” when applied in a comparative negligence regime. Lorio v. Cartwright, 768 F.Supp. 658, 660 (N.D. Ill. 1991).

Shielding a potential tortfeasor from liability is not compatible with a comparative negligence regime, however. As the federal district court in Gordon v. Great West Casualty Co. noted:

Where an employer’s potential fault is merged with that of the employee, the jury might not have a true picture of either party’s wrongful acts – which may, in turn, magnify the comparative fault of the plaintiff or other individuals. For instance, a plaintiff involved in a car accident may bring a claim of negligence against a defendant truck driver who failed to exercise adequate care while driving on icy roads. If the employer then stipulates to vicarious liability, the plaintiff cannot also maintain a claim based on the employer’s negligent training or supervision of the employee. Accordingly, evidence that the company failed to train employees on how to encounter that hazard or required them to push on with their loads despite the conditions could be ruled inadmissible – as other defendants have argued in multiple cases before this court. If admitted, the evidence could also tend to make the employee look less culpable. After all, is it really his fault that he was not properly trained or supervised? And the verdict sheet leaves no other place to account for the employer’s direct negligence. If the jury decides to go easier on the employee, other individuals – for instance, the plaintiff or drivers of other vehicles involved in the accident – necessarily become more culpable and the fundamental purpose of comparative fault is frustrated. Likewise, where the employer can exclude evidence or avoid any public airing of its direct negligence merely because it is also financially liable under a theory of vicarious liability, the deterrent aims of tort law are thwarted. In effect, under such a rule, the employer would serve as insurer for the employee rather than codefendant and need not even have its identity revealed to the jury.

Gordon v. Great W. Cas. Co., No. 2:18-CV-967, 2020 WL 3472634, at *4 (W.D. La. June 25, 2020).

Defendants point to the federal district court opinion in Dennis v. Collins as support for their contention that direct negligence claims are “subsumed” by claims against an employee once course and scope are admitted. Dennis, 2016 WL 6637973,  at *3. In Dennis, a Greyhound bus struck a car in which plaintiff was a passenger. Id. at *1. The plaintiff alleged that the bus driver was negligent in his driving and that his employer, Greyhound Lines, was negligent in the supervision of, teaching, and training the driver. Id. Greyhound stipulated to the fact that the driver was acting in the course and scope of employment at the time of the accident. Id. at *5. Greyhound then filed a motion for partial summary judgment seeking dismissal of the direct claims against it. Id. at *1.

The Dennis court stated at the outset that because there was no binding precedent on this issue under Louisiana law, it would be making “its best Erie guess.” Id. at *2. Based on previously decided state and federal cases, the Dennis court drew a distinction between cases where course and scope were contested or where the tort was intentional and cases where an employer had admitted course and scope at the time of the accident. Id. at *6. The Dennis court opined that where course and scope was an issue or where the tort was intentional, a plaintiff may simultaneously maintain independent causes of action against an employee and employer. Id. at *6-7. On the other hand, according to Dennis, if an employer stipulates to course and scope, a plaintiff may not simultaneously maintain direct causes of action against the employer. Id. at *7.

The Dennis court reasoned that an employer could not be found liable of negligent hiring if the employee was not also negligent. Id. at *8. Said another way, even if the employer had been negligent in hiring the employee, there is no way that the employer’s negligence could have been either the but-for cause or the legal cause of the injury to the plaintiff. Id.

Dennis has been used as support in a number of federal and state decisions on this issue. Dennis relied on Libersat v. J &K Trucking, which, at the time Dennis  was decided, was one of the only Louisiana cases that discussed the exact issue of a plaintiff not being allowed to put on evidence of negligent hiring and training after an employer admitted course and scope. Libersat, 00-192 (La.App. 3 Cir. 10/11/00), 772 So.2d 173. On appeal, plaintiffs in Libersat assigned error to the trial court’s refusal to instruct the jury on the employer’s duty in hiring and training the employee. Id. at p. 2, 772 So.2d at 175. The appellate court, reviewing for abuse of discretion, opined:

[T]his Court finds that the trial court’s instructions regarding [the employer’s] possible liability are an accurate reflection of the law. Patterson, as Mr. Mitchell’s employer, would be liable for his actions under the theory of respondeat superior. If Mr. Mitchell breached a duty to the [plaintiffs], then Patterson is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the [plaintiffs] then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the [plaintiffs]. The trial judge has the responsibility of reducing the possibility of confusing the jury, and he may exercise the duty to decide what law is applicable. Sparacello v. Andrews, 501 So.2d 269 (La.App. 1 Cir.1986), writ denied, 502 So.2d 103 (La. 1987). The court did not err in using its discretion to omit [plaintiffs’] requested jury instructions regarding negligent hiring and training because they were not appropriate in this case.

Id. at pp. 10-11, 772 So.2d at 179. Libersat was correct in pointing out that an employer can only be liable under theories of negligent hiring, supervision, training and retention, and negligent entrustment if the employee is at fault, and that the employer cannot be liable if the employee is not at fault. As noted in Libersat, “no degree of negligence” on the part of the employer in hiring the employee would make the employer liable if the employee did not breach a duty to the plaintiff. This is an accurate, but limited, observation. The possibility that both the employee and employer may be at fault is not thus foreclosed or “subsumed.” Our traditional civil jury instruction on this point provided in part:

When I say that the injury must be shown to have been caused by the defendant’s conduct, I don’t mean that the law recognizes only one cause of an injury, consisting of only one factor or thing, or the conduct

of only one person. On the contrary, a number of factors may operate at the same time, either independently or together, to cause injury or damage.

H. Alston Johnson III, Civil Jury Instructions, in 18 Louisiana Civil Law Treatise § 3:3 (3d ed. 2021). If no fault is shown on the part of the employee, the inquiry is ended, because there is no cause-in-fact or legal cause. But if fault is shown on the part of the employee, then the issue of whether there is also fault on the part of the employer remains an open question which must be decided according to the evidence on a case by case basis. The fault of both the employer and employee “shall be determined.” C.C. art. 2323. Depending on the evidence, the employer may well be entitled to summary judgment. And, in a case like Libersat, if the evidence is lacking, a jury instruction at trial regarding an employer’s negligence may not be appropriate. But the employer does not automatically prevail on summary judgment as a matter of law merely by stipulating that the employee was in the course and scope of employment. The evidence should determine whether the negligence of both the employer and the employee caused the damages claimed. The application of theories of vicarious liability or respondeat superior occur only if a degree of fault has been assessed to the employee in the course and scope of employment, for which the employer becomes financially responsible.

Based on the foregoing, we conclude that the district court erred granting the motion for partial summary judgment in favor of the defendants as a matter of law. Under Louisiana law, fault is compared, not “subsumed” due to the application of the theory of respondeat superior after fault has been determined.

DECREE

Accordingly, we reverse the district court ruling and remand.

Crichton, J., additionally concurs and assigns reasons:

I agree with the majority that the plaintiff in this matter may maintain his claims against both the employee and the employer even if the employer has stipulated to vicarious liability for the employee’s negligent acts. It is significant that defendants do not argue that plaintiff’s employer negligence claims lack factual support. Instead, they take the position that all such claims must be dismissed as a matter of law where it is stipulated that the employee was in the course and scope of employment. To the contrary, Louisiana Civil Code article 2323 provides, by its plain language, that the fault of “all persons causing or contributing” to the plaintiff’s loss “shall be determined . . . under any law or legal doctrine or theory of liability, regardless of the basis of liability.” (Emphasis added.) See also La. C.C.P. art. 892 (“[A] petition may set forth two or more causes of action in the alternative, even though the legal or factual bases thereof may be inconsistent or mutually exclusive.”).

We have long held that the vicarious liability claim for which an employer may be responsible by law – regardless of causation – and the negligent hiring claim for which an employer may be liable by its own acts of negligence are “two theories of liability [that] are separate and independent.” Roberts v. Benoit, 605 So.2d 1032, 1037 (La. 1991), on reh’g (May 28, 1992). Where causation is established, 1  comparative fault applies and requires the trier of fact to consider “both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.” Watson v. State Farm Fire &Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). Because defendants have failed to disprove that some fault may be allocated to both the employer and the employee due to the negligent actions of each, comparative fault requires that the claims against the employer be maintained at this point in the proceedings. WILLIAM E. CRAWFORD, Allocation of fault, 12 LA. CIV. L. TREATISE, Tort Law § 8:5 (2d ed.) (“Under the express provisions of C.C. art. 2323, as implemented by C.C.P. art. 1812c, 100% of the causative fault for a harm must be allocated, whether to parties or nonparties.”).

Of course, a plaintiff’s claim for negligent hiring must be meritorious. See La. Rule Prof. Conduct 3.1 (a lawyer shall not assert a claim “unless there is a basis in law and fact for doing so that is not frivolous”). Furthermore, after adequate discovery it may be that summary judgment in favor of the employer is warranted because no genuine issues of material fact exist and defendant employer is thus entitled to summary judgment as to the negligent hiring claim. Where an employer’s negligence is established, however, comparative fault analysis will apply at the trial on the merits.

For these reasons, and those set forth by the majority, I agree to reverse the lower courts and remand to the trial court for further proceedings, including necessary discovery. 

Crain, J., concurring, I write separately to emphasize that on the issue presented, often the distinction between vicarious liability and fault has been lost. Vicarious liability involves a shifting of financial responsibility, not fault. If an employee is in the course and scope of employment and causes injury, the employer is financially responsible for the employee’s fault. La. Civ. Code art. 2320. That determination is not based on the employer’s fault. See Roberts v. Benoit, 605 So.2d 1032, 103637 (La. 1991). It is an independent financial responsibility based on the employment relationship. Id.

Separately, an employer can be assigned fault under any viable theory of liability available against the employer. La. Civ. Code art. 2315. If it involves negligent hiring, supervision, training, retention, or a negligent entrustment claim, the factfinder will simply compare and weigh the acts of both the employee and employer, then assign fault. La. Civ. Code art. 2323. I agree with the majority. 

source

JERRE S. WILLIAMS, Circuit Judge:

Dr. Martin challenged the propriety of his arrest and prosecution by bringing a section 1983 suit for excessive force and arrest without due process. He also brought a pendent state law claim for malicious prosecution. The jury found in favor of Dr. Martin. Appellants Thomas, Shepard, Prater, and Clarkson all appeal the jury finding of malicious prosecution, claiming improper jury instructions, insufficient evidence, lack of jurisdiction, and qualified immunity. Appellants Thomas and Shepard challenge the verdict of excessive force claiming improper jury instruction and qualified immunity. Appellant Thomas also challenges the verdict of an arrest without due process claiming the evidence supports a finding of probable cause. Prater and Clarkson correctly assert the malicious prosecution verdict against them is not supported by sufficient evidence, and we reverse that ruling. Appellants’ other objections, however, are without merit, and we, therefore, affirm the verdicts.

I. FACTS

The outcome of this case rests largely upon credibility determinations by the jury. The facts presented by the plaintiff are in stark contrast to the facts presented by the defendants, and the only evidence is the parties’ testimony as well as reports and letters submitted by the parties describing the events in question. Thus, the jury was required to determine who prevailed based on whom the jury believed.

The pertinent facts that are not in dispute are relatively few. On July 12, 1982, Dr. Martin, a professor at Texas Southern University (“TSU”), had not yet been paid for a course he had taught, and he was informed that the man to whom he needed to talk was in the gymnasium participating in preregistration. Accordingly, Martin proceeded to the gym. After entering the gym, he was subsequently arrested by TSU police officers.

It is also not in dispute that a substantial sum of money had been stolen during preregistration the previous year. Consequently, Sergeant Brooks, the officer in charge of police operations, had given the TSU police officers on duty specific instructions as to who could enter the gym and through what entrance visitors could enter.

The dispute, as to the facts, begins when Dr. Martin arrived at the gymnasium. Martin claims he went to the back door of the gymnasium and knocked. Officer Shepard invited him into the gym. Martin showed his I.D. to the officer, but the I.D. stated he was a staff member and not a faculty member. Martin told Officer Shepard that he would look and find someone  who could identify him as a faculty member. Officer Shepard turned away from Martin because there was another knock at the door. At that time, Martin proceeded into the gym to try and find someone who could identify him.

Dr. Martin then maintains that he heard Officer Shepard say “Just push this guy out of here,” as Officer Thomas approached him. Martin showed Officer Thomas his I.D., but Officer Thomas ignored it as he grabbed Martin. Martin protested that Thomas “should not do that,” and Thomas responded by twisting the professor’s arms behind his back and throwing him down on the bleachers. The officers took Martin outside, placed handcuffs on him, and threw him on the hood of a police car. Dean Prater, dean of the School of Technology where Dr. Martin taught, witnessed the events outside the gymnasium but did not come to Martin’s aid. Martin was taken to jail where he spent seven hours. Martin claims that at no time did he physically threaten the officers or resist the arrest.

The police officers offer a different version of the events. Officer Shepard asserts that he allowed Dr. Martin into the gym but told him that he had to stand inside the doorway, adding that if he wanted to enter the gym he could use the front door. Martin protested that he was a faculty member and could go anywhere he wanted. He walked towards the center of the gym, and Officer Shepard told Officer Thomas to turn Martin around and send him out of the gym. Officer Thomas asked Martin to leave. Martin became verbally abusive. Again, the two officers asked him to leave, but he refused. Martin raised his hand as if to strike Officer Shepard. The officers tried to restrain Martin, and they all fell into the bleachers. The officers maintain that throughout these events, Martin was kicking and screaming and physically threatening the officers. The officers took Martin to the police car, and finally put him into the police car after much trouble because of Martin’s kicking. They then took Dr. Martin to jail.

Dr. Martin was charged with resisting arrest. He claims he later had a meeting with L.L. Clarkson, the academic vice-president, and Theodore Andrews, the TSU counsel. He was told that charges against him would be dropped if he agreed to drop all his charges and absolve TSU from any penalties. He refused the offer. Dr. Martin thereafter was tried and acquitted of resisting arrest. In December 1982, Martin received a letter stating that TSU would not renew his contract.

Dr. Martin brought suit against numerous TSU employees, including Officers Thomas and Shepard, Dean Prater, and Mr. Clarkson. The defendants were sued in both their individual and official capacities. The jury apparently believed Dr. Martin’s version of what happened based on its special verdicts in response to sixteen questions. The jury found that Officer Shepard had arrested Martin without due process of law and awarded Martin $5,000. They also found that both Thomas and Shepard had used excessive force and awarded Martin $20,000 for humiliation and emotional distress. The jury finally found that Thomas, Shepard, Prater, and Clarkson had maliciously prosecuted Martin, and the jury awarded a total of $13,200 in compensatory damages and $7,001 in punitive damages for this injury. Appellants challenge these jury findings.

II. DUE PROCESS

The jury found Dr. Martin’s arrest by Officer Shepard was without due process of law in violation of 42 U.S.C. § 1983. There are two essential elements of a section 1983 action: (1) the conduct in question must be committed by a person acting under the color of state law; and (2)  the conduct must deprive the plaintiff of a right secured by the Constitution or the laws of the United States. Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir. 1984); Thomas v. Sams, 734 F.2d 185, 190-91 (5th Cir. 1984), cert. denied, 472 U.S. 1017, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985). The parties do not dispute that Shepard was acting under the color of state law at the time of the arrest, and the right to be free from illegal arrest is a right secured by the Constitution.

A police officer must make a determination of probable cause before he causes any significant pretrial restraint of liberty. Duckett v. City of Cedar Park, Texas, 950 F.2d 272, 278 (5th Cir. 1992). In making a determination of probable cause, we do not require a police officer to be perfect, nor do we want him always to err on the side of caution out of the fear of being sued. Hunter v. Bryant, ___ U.S. ___, ___, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991). We do, however, require a police officer to make a reasonable determination whether probable cause exists:

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). See also, United States v. Bustamante-Saenz, 894 F.2d 114, 118 (5th Cir. 1990); United States v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989). “Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.” Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985).

Officer Shepard goes to great lengths arguing that the facts support a finding of probable cause to arrest. He maintains Martin’s entry into the gym constituted criminal trespass, and Martin’s kicking, screaming, and making of threats constituted assault, disorderly conduct, and resisting arrest. Shepard’s argument is flawed because he analyzes only his version of the facts. According to Martin’s version of the facts, he did not trespass because he was given permission to enter the gym. Similarly, his actions did not constitute assault, disorderly conduct, and resisting arrest because he alleges that he never kicked or screamed or made threats to the officers.

Unlike this Court, the jury observed the various witnesses and made assessments as to the credibility of each. The jury is at liberty to accept or reject the testimony of any witness, and apparently, the jury trusted Martin’s account instead of the defendants’ accounts. “Weighing the conflicting evidence and the inferences to be drawn from that evidence, and determining the relative credibility of the witnesses, are the province of the jury, and its decision must be accepted if the record contains any competent and substantial evidence tending fairly to support the verdict.” Gibraltar Savings v. LDBrinkman Corp., 860 F.2d 1275, 1297 (5th Cir. 1988), cert. denied, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 988 (1989). Because Martin’s version of the  facts, accepted as true, is that he neither trespassed nor physically nor verbally threatened the officers, we affirm the jury’s finding of an arrest without due process.

III. JURY INSTRUCTIONS

The defendants challenge the appropriateness of the instructions the district judge gave the jury. We grant broad discretion to the district judge in formulating the jury charge. On appeal, we review the charge as a whole and reverse only if the jury is misled as to the substantive law. Bradshaw v. Freightliner Corp., 937 F.2d 197, 200 (5th Cir. 1991). “No harmful error is committed if the charge viewed as a whole correctly instructs the jury on the law, even though a portion is technically imperfect. Harrison v. Otis Elevator Co., 935 F.2d 714, 717 (5th Cir. 1991).

A. EXCESSIVE FORCE

The jury found that Officers Thomas and Shepard used excessive force in their arrest of Dr. Martin. The officers challenge the propriety of this finding, claiming the jury finding was based on an improper jury instruction. The district judge gave the following instruction in regard to the excessive force claim:

[I]n making a lawful arrest an officer has the right to use such force as is necessary under the circumstances to effect the arrest. Whether or not the force used in making an arrest was excessive is an issue to be determined in the light of all the surrounding circumstances, on the basis of that degree of force a reasonable and prudent officer would have applied in effecting the arrest under the circumstances disclosed in the case. To find that excessive force was used in the arrest of Dr. Martin, you must find a significant injury was caused Dr. Martin directly and only from the use of force which was excessive and that the excessiveness of the force was unreasonable…. For the purpose of deciding the reasonableness of the use of force, you must not consider the state of mind or motives of the officer. An officer’s evil intentions will not make unlawful an objectively reasonable use of force, nor will an officer’s good intentions make an unreasonable use of force constitutional.

The officers assert the instruction is improper based on the standard established in Shillingford v. Holmes, 634 F.2d 263 (5th Cir.Unit A 1981).

In Shillingford, this Court articulated the following criteria for excessive force claims:

If the state officer’s action caused severe injuries, was grossly disproportionate to the need for action under the circumstances and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983.

Id. at 265. Caselaw contemporary to the Shillingford decision reiterated the standard.

The conduct in question — i.e., the arrest of Dr. Martin — occurred while the Shillingford standard remained unchanged. By the time the case came to trial, however, the Supreme Court had established a new standard based upon the test of reasonableness under the Fourth Amendment. The Court said:

[T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation…. The Fourth Amendment inquiry is one of “objective reasonableness” under the circumstances, and subjective concepts like “malice” and “sadism” have no proper place in that inquiry.

Graham v. Connor, 490 U.S. 386, 397-99, 109 S.Ct. 1865, 1872-73, 104 L.Ed.2d 443 (1989). In an en banc opinion immediately following the Graham decision, this Court stated, “A plaintiff can thus prevail on a Constitutional excessive force claim by proving each of these three elements: (1) a significant injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable…. We overrule all previous decisions of this circuit to the contrary.” Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc) (emphasis added). Thus, between the time the incident in question occurred and the case came to trial, the excessive force standard had been changed so that the injury had to be “significant” instead of “severe” and also malice was no longer an element.

The issue before this Court, therefore, is whether we apply the excessive force standard in use when the incident occurred or the one in use when the case came to trial. The defendants maintain that we are bound by Pfannstiel v. City of Marion, 918 F.2d 1178 (5th Cir. 1990). Pfannstiel involved a claim of excessive force arising from an incident in 1985, but the case went to trial after Graham established the new standard and after Johnson applied it. In Pfannstiel, we held that the Shillingford standard still applied. The Court, however, overlooked the fact that in Johnson also the incident had occurred before Graham while Shillingford was still in effect, but in Johnson, an en banc case, we applied the Graham standard.

We are bound by the earlier en banc opinion in Johnson. The Johnson decision explicitly relied upon the Supreme Court’s decision in Graham even though the incident in Johnson also had occurred prior to the ruling in Graham. The en banc court, therefore, applied Graham retroactively.

Other courts have held similarly that Graham is to be applied retroactively. Some courts have expressly stated that they are doing so, see, Austin v. Hamilton, 945 F.2d 1155, 1161 n. 4 (10th Cir. 1991); Reed v. Hoy, 909 F.2d 324, 327-28 (9th Cir. 1989), cert. denied, ___ U.S. ___, 111 S.Ct. 2887, 115 L.Ed.2d 1053 (1991). Other courts have applied it retroactively without explanation, see, Miller v. Lovett, 879 F.2d 1066, 1070 (2d Cir. 1989); Thomas v. Frederick, 766 F. Supp. 540, 553 (W.D.La. 1991); Braud v. Painter, 730 F. Supp. 1, 7 (M.D.La. 1990).

The instruction by the district court to the jury on excessive force was in accord with the Supreme Court’s holding in Graham. This Court applied Graham retroactively in the controlling en banc decision in Johnson. We find no error in the excessive force jury instruction.

B. MALICIOUS PROSECUTION

The jury found that Thomas, Shepard, Prater, and Clarkson had maliciously prosecuted Dr. Martin in violation of Texas state law. The defendants claim the finding was precipitated by an improper jury instruction. The district judge gave the following instruction:

In order to prevail on this claim of malicious prosecution, Dr. Martin must establish each of the following elements: One,  that a defendant acted outside the course and scope of his lawful authority. Two, that a defendant initiated against him prosecution for the crime of resisting arrest. Three, that the prosecution ended in favor of Dr. Martin, and that there was no probable cause for the prosecution. And, five, that the defendant acted with malice.

Defendants allege the trial judge’s instruction failed to include two elements of malicious prosecution — i.e., Martin was innocent of the charge of resisting arrest and he suffered damages. The only Fifth Circuit case that lists the elements of malicious prosecution under Texas law includes the elements the defendants claim are lacking from the instruction. Brown v. United States, 653 F.2d 196, 198-99 (5th Cir.Unit A 1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982): “[T]o recover for malicious prosecution in Texas, the plaintiff must prove seven elements: (1) a criminal action was commenced against him; (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in the plaintiff’s favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff”.

Although the district judge did leave out these last two requirements when he was listing the elements, an examination of the charge as a whole reveals that all the elements were included. Immediately, following his listing of the elements of malicious prosecution, the district judge defined the offense of resisting arrest, thereby indicating that the jury had to find Martin innocent of resisting arrest, the crime with which he was ultimately charged. Then, the judge concluded his instructions by stating, “If you find that any rights of the plaintiff Dr. Martin have been violated, you must consider whether he should recover damages; and if so, in what amount.” This instruction demonstrated to the jury that damages were an element of malicious prosecution. The jury found Martin had been damaged through humiliation, emotional distress, injury to reputation, and cost of a criminal defense.

Thus, the jury charge, when viewed as a whole, contained all the necessary elements of a claim of malicious prosecution. Although a more lucid instruction could have been presented, we cannot find that the district judge erred in the instruction, considering the proper deference we pay the district judge in formulating the jury charge.

IV. SUFFICIENCY OF THE EVIDENCE — MALICIOU$ PRO$ECUTION (Click Here to Read More on the Subject)

The defendants claim the malicious prosecution verdict should be reversed because there is insufficient evidence to support it. This court reviews for substantial evidence. Emmons v. Southern Pacific Transport. Co., 701 F.2d 1112, 1119 (5th Cir. 1983). The determination of the elements of a malicious prosecution case is a question of fact, and such conclusions are reversible only if “the facts and inferences point so strongly and overwhelmingly in  favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). See also, Hand v. Gary, 838 F.2d 1420, 1425 (5th Cir. 1988).

First, notwithstanding the deference we pay the jury’s decision, we reverse the malicious prosecution verdicts against Clarkson and Prater for insufficient evidence. Martin’s evidence of malicious prosecution by Clarkson consists only of the following: (1) Clarkson was present at a meeting in which Martin was offered the opportunity to have the charges dropped against him in return for his promise to release TSU from any liability; and (2) Clarkson failed to take any action to prevent the prosecution after reading a report raising doubts about Martin’s guilt. The limited evidence against Clarkson is not sufficient to support the malicious prosecution verdict. His presence and silence at a meeting does not logically imply he authorized the bringing of charges against Martin. There is no affirmative act by Clarkson that played any role in the actions taken against Martin.

While evidence of Clarkson’s participation is extremely limited, evidence of Prater’s affirmative participation in or assistance of the prosecution is virtually non-existent. Martin merely claimed Prater was present when the police arrested Martin, but Prater failed to identify him or assist him in any way. At most, Clarkson and Prater were shown as not taking action to help Martin. Malicious inaction is not a tort, absent a special relationship. Miles v. Melrose, 882 F.2d 976, 992 (5th Cir. 1989); Howell v. City Towing Associates, Inc., 717 S.W.2d 729, 733 (Tex.App.-San Antonio, 1986, writ ref’d n.r.e.). The testimony regarding Clarkson and Prater’s non-feasance is legally insufficient to support a malicious prosecution verdict, and we accordingly reverse the jury’s finding of liability for malicious prosecution as to Clarkson and Prater.

As to the police officers, Thomas and Shepard, the testimony shows they are the ones who took the affirmative action against Martin in the events in the school gymnasium. Thomas and Shepard defend by saying that they had probable cause for their actions, and lack of probable cause is a necessary element of a malicious prosecution action in Texas. Seven Elves, Inc., v. Eskenazi, 704 F.2d 241, 245 (5th Cir. 1983). Defendants claim they could reasonably believe that Martin was guilty of either trespass, disorderly conduct, or resisting arrest. The facts as presented by Dr. Martin, however, do not support a finding of probable cause. Officer Shepard’s permission to enter the gymnasium precluded a belief that Dr. Martin was trespassing, and his compliance with the officers’ actions rebutted a claim of disorderly conduct or resisting arrest. The jury was permitted to believe Dr. Martin’s version of what occurred at the gymnasium instead of the defendants’ version.

Furthermore, the defendants claim Dr. Martin never proved malice on their part, which is a necessary element of malicious prosecution. Because it is difficult to prove a person’s state of mind, malice can be inferred from circumstantial evidence. See, Fisher v. Beach, 671 S.W.2d 63, 67 (Tex.App.-Dallas 1984, no writ) (“Malice, defined as ill will, evil motive, or reckless disregard of the rights of others, may be established by direct or circumstantial evidence and may be inferred from want of probable cause”); Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App.-Corpus Christi 1988, writ denied) (“Appellants generally have a duty to make a full and fair disclosure of all evidence to the police and a failure to make material exculpatory information known to the police could be evidence of a hostile motive …”). Upon hearing the evidence and assessing the demeanor and credibility of the witnesses, the jury found the defendants acted with malice. The finding on the record is not clearly erroneous.

After reviewing the record, we find that the lack of sufficient evidence contention of defendants Thomas and Shepard is without merit. The jury was presented with conflicting evidence and it made a determination as to the defendants’ actions. The  jury plainly analyzed the elements of malicious prosecution because it found Shepard, Thomas, Prater, and Clarkson liable, but it concluded the evidence was insufficient to support a finding of malicious prosecution as to two other school administrators, Jefferson and Hill. We hold that the jury’s findings are supported by sufficient evidence except as to Prater and Clarkson.

V. ELEVENTH AMENDMENT

As a final attack upon the malicious prosecution verdict, the defendants claim federal courts lack jurisdiction over the malicious prosecution action. Dr. Martin’s malicious prosecution claim is a state law action, and the Eleventh Amendment prohibits suits in federal court by a citizen against his own state or against a state agency or department. “[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.” Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). The constitutional prohibition applies with equal force to pendent claims as well. Id., 465 U.S. at 120, 104 S.Ct. at 918; Daigle v. Gulf State Utilities Co., Local Union No. 2286, 794 F.2d 974, 980 (5th Cir.), cert. denied, 479 U.S. 1008, 107 S.Ct. 648, 93 L.Ed.2d 704 (1986) (“[P]endent jurisdiction may not override the Eleventh Amendment”). Defendants claim they are being sued in their official capacity, and, accordingly, federal courts lack jurisdiction.

The defendants misinterpret Dr. Martin’s lawsuit. Dr. Martin is suing the defendants for malicious prosecution in their individual capacities as opposed to their official capacities. The Eleventh Amendment does not bar suits against officials in their individual capacities. See, Crane v. State of Texas, 759 F.2d 412, 428 n. 17 (5th Cir.), amended in part, 766 F.2d 193 (5th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555 (1985) (“The Eleventh Amendment is obviously no bar to actions for damages against officials sued in their individual capacities”); American Civil Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d 1336, 1341-42 (5th Cir.Unit A 1981) (“It is well settled, for instance, that a public officer’s conduct can be sufficiently “official” to constitute state action within the meaning of the fourteenth amendment without at the same time being sufficiently “official” to trigger the bar of the eleventh amendment”). Thus, because defendants are sued in their individual capacities, the federal courts have jurisdiction.

VI. QUALIFIED IMMUNITY

Finally, the defendants claim to have qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court established an objective test for determining qualified immunity. The Court stated, “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., 457 U.S. at 818, 102 S.Ct. at 2738. The Supreme Court further defined the doctrine in later opinions. An official’s act does not enjoy the protection of qualified immunity if “in the light of pre-existing law the unlawfulness [is] apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). “The qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, ___ U.S. at ___, 112 S.Ct. at 537 (1991) (citations omitted).

Early in the proceedings at hand, the district judge ruled the defendants did not have qualified immunity. The defendants  now challenge that ruling with respect to the claims of excessive force and arrest without due process. Whether the defendants had the protection of qualified immunity in the present case is moot because any claim of qualified immunity has been waived.

With respect to the legal issues implicated by a claim of qualified immunity, the defendants waived their claim at the time of a magistrate’s report. A magistrate judge recommended denying defendants’ motion for summary judgment which included their claim of qualified immunity. 28 U.S.C. § 636(b)(1) provides defendants 10 days to object to the magistrate’s report. Martin’s counsel reminded defendants’ counsel of the effect of the magistrate’s ruling. Nevertheless, the defendants did not object within the specified ten days. Thus, they waived a claim of assured qualified immunity as a matter of law, although factual issues remained since the summary judgment motion involved only the question of law.

The remaining factual question implicated by the immunity defense were later waived. In discussing jury instructions with the district judge, Dr. Martin’s attorney stated, “We’ve agreed qualified immunity is not a jury issue because we’re not going to put that in.” Moreover, when the defendants made their objections to the jury instructions, they made no objections to the lack of issues concerning qualified immunity going before the jury. They were well aware of the factual issues involved because they objected to the instructions on excessive force, but they did not ask that any qualified immunity issues go to the jury. We conclude that there was full waiver of qualified immunity.

VII. CONCLUSION

We affirm the judgment based upon the findings of excessive force, arrest without due process, and the judgment based upon the finding of malicious prosecution as to Thomas and Shepard. We affirm the rejection of the Eleventh Amendment and qualified immunity claims. We reverse the judgment based upon the finding of malicious prosecution as to Prater and Clarkson.

Appellants’ pending motion to supplement the record excerpts with portions of the transcript is denied as moot. It is perhaps particularly useful to point out that on the issue of qualified immunity the Court relied upon the entire trial transcript and record in reaching this decision.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

PENDING MOTION DENIED.