NOT DESIGNATED FOR PUBLICATION

PARRO, J.

Richard Taylor appeals a judgment granting Home Depot U.S.A., Inc.'s motion for summary judgment and dismissing all of his claims against it. Based on our de novo review of the record, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 31, 2009, Taylor was shopping with his daughter and two friends at a store owned and operated by Home Depot U.S.A., Inc. (Home Depot) in Denham Springs, Louisiana. While he conversed with one of the store managers, another Home Depot employee, Wilbert Elsenrath III, approached the group. Elsenrath greeted Taylor, whom he had known for some time, grabbed him in a "bear hug," and lifted him off the floor.2 Taylor later experienced neck, back, and shoulder pain that he attributed to this incident, and eventually filed suit in the Nineteenth Judicial District Court against Home Depot and Elsenrath. He claimed Home Depot was vicariously liable for its employee's actions and was also liable due to its negligence in hiring, training, and supervising Elsenrath.

Home Depot filed a motion for summary judgment, denying any vicarious liability on the grounds that Elsenrath was not in the course and scope of his employment at the time of this incident, because he had already clocked out and was on his way out of the store when he encountered Taylor. Home Depot also alleged that Elsenrath was not engaged in any action that would further the purposes of Home Depot, because he was not assisting Taylor in a purchase or approaching him as a Home Depot customer, but was simply greeting him as a friend. Home Depot supported its motion with excerpts from the depositions of Taylor and Elsenrath and a "Punch Detail Report" from Home Depot showing when Elsenrath clocked out on the day of the incident. Following a hearing, the court granted Home Depot's motion for summary judgment.

Both parties submitted proposed judgments for the court's signature. Taylor's proposed judgment granted Home Depot's motion only as to the vicarious liability claim and deferred ruling on any other claim. Home Depot's proposed judgment granted the motion for summary judgment and dismissed Taylor's claims against it. The court signed both judgments; Taylor's proposed judgment was signed on June 29, 2012, and Home Depot's proposed judgment was signed on July 5, 2012. Because of this inconsistency, Taylor moved the court to provide written reasons for judgment. The record contains no response to this motion.

Taylor filed this devolutive appeal of the judgment signed on July 5, 2012,3 claiming the only issue addressed by the motion for summary judgment, the briefs in support of the motion, and the hearing on the motion was whether Elsenrath was in the course and scope of his employment, such that Home Depot would be vicariously liable. Taylor claims the court erred in dismissing all of his claims, because the motion and arguments did not address the issue of whether Home Depot was liable due to negligent hiring, training, or supervision of Elsenrath, which is a completely separate cause of action. Home Depot contends that it demonstrated that Taylor could not prove an essential element of either cause of action. It claims the evidence showed Elsenrath was not in the course and scope of his employment at the time of this incident, an essential element of Taylor's vicarious liability cause of action, nor was he in any way engaged in furthering Home Depot's business, an essential element of the negligent hiring cause of action. Home Depot further argues that Taylor did not produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof on this common element at trial.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2); George S. May Int'l Co. v. Arrowpoint Capital Corp., 11-1865 (La. App. 1st Cir. 8/10/12), 97 So.3d 1167, 1171. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material, for purposes of summary judgment, can be seen only in the light of the substantive law applicable to the case. Gaspard v. Graves, 05-1042 (La. App. 1st Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 06-0882 and 0958 (La. 6/16/06), 929 So.2d 1286 and 1289.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(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; however, a summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. LSA-C.C.P. art. 966(E)(1).

Vicarious Liability

Every master or employer is answerable for the damage occasioned by his servant or employee in the exercise of the functions in which they are employed. LSA-C.C. art. 2320; see also LSA-R.S. 9:3921. Specifically, an employer is liable for torts committed by its employee if, at the time, the employee was acting within the course and scope of his employment. Baumeister v. Plunkett, 95-2270 (La. 5/21/96), 673 So.2d 994, 996. An employee is acting within the course and scope of his employment when the employee's action is "of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer." Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224, 226-27. In determining whether the employee's conduct is employment-rooted, the court assesses several factors, including the payment of wages by the employer, the employer's power of control, the employee's duty to perform the particular act, the time, place, and purpose of the act in relation to service of the employer, the relationship between the employee's act and the employer's business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act. Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La. 1985). The determinative question in a vicarious liability claim is whether the employee's tortious conduct "was so closely connected in time, place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest." Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131, 139 (citing LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974), and Roberts v. Benoit, 605 So.2d 1032, 1041 (La. 1991)).

Negligent Hiring and Supervision

A claim against an employer for the torts of an employee based on the employer's alleged direct negligence in hiring, retaining, or supervising the employee generally is governed by the same duty-risk analysis used for all negligence cases in Louisiana. Griffin v. Kmart Corp., 00-1334 (La. App. 5th Cir. 11/28/00), 776 So.2d 1226, 1231. A limitation on the negligent hiring theory is that the employee, while not necessarily within the "scope of employment," must be engaged in some respect in furthering the employer's business. Roberts, 605 So.2d at 1039.

ANALYSIS

The only assignment of error in this case is that the court erred in dismissing Taylor's suit, because there were other causes of action to be addressed. Taylor contends that Home Depot did not file a motion for summary judgment regarding his second cause of action, negligent hiring and supervision, and therefore, the trial court did not address it. We have reviewed the motion, supporting memorandum, statement of uncontested facts, and exhibits, and agree that the wording of the motion itself suggests that only the vicarious liability cause of action is being addressed. The motion states that because discovery revealed that Elsenrath "was not in the course and scope of his employment with Home Depot at the time of the subject incident," Home Depot should be dismissed.

However, the motion incorporates the attached memorandum, statement of undisputed facts, and exhibits, all of which expand on the wording in the motion. In the memorandum, Home Depot reiterates its argument that Elsenrath had clocked out and was not in the course and scope of his employment at the time of the accident, but further states that "he was not performing any work on behalf of Home Depot when the incident occurred." Home Depot refers to Elsenrath's deposition, in which he said that his action with Taylor was because they were friends and was not related to any type of customer service for Home Depot. Elsenrath's deposition further reveals that he would not deal with "regular customers" like that, but that "with [Taylor], it was a joking thing that we've always done." He also said that this would not have been in line with customer service, but would have been "because we were friends." Home Depot also cites Taylor's deposition, in which he confirmed that Elsenrath was not helping him at the time of the incident and had not been asked to help him with anything.

Taylor cites the case of Sam Z. Scandaliato & Assoc., Inc. v. First Eastern Bk. & Trust, 589 So.2d 1196 (La. App. 4th Cir. 1991), in which the plaintiff sued the bank for libel, slander, negligence, and malicious prosecution. The bank's insurer moved for summary judgment on the grounds that its policy did not cover libel or slander; the trial court granted the motion and dismissed the insurer. In its reasons for judgment, the trial court stated that it found that, "the motion for summary judgment was based on a policy exclusion of actions for libel and slander." Scandaliato, 589 So.2d at 1198. The trial court did not address the issues of coverage regarding the negligence and malicious prosecution claims when it dismissed the insurer from the action. Accordingly, the appellate court remanded the case for consideration of the plaintiff's other causes of action. Id.

Taylor also cites this court's decision in Welch v. East Baton Rouge Parish Metro. Council, 10-1532 (La. App. 1st Cir. 3/25/11), 64 So.3d 249, in which the plaintiffs sued the Council, alleging three violations of the Unified Development Code (UDC). A motion for summary judgment filed by the plaintiffs concerning the first two violations was denied. The plaintiffs amended their petition, seeking a declaratory judgment that certain amendments to the UDC were unconstitutional. The developer of the property at issue intervened as an additional defendant. The developer filed a motion for partial summary judgment concerning two of the UDC violations; before that motion was heard, it also filed an exception raising the objection of no cause of action as to the plaintiffs' amended petition. The trial court granted the developer's motion for summary judgment, dismissing the plaintiffs' claims as to two of the UDC violations. In a second motion for summary judgment, the developer sought dismissal of the claim as to the third UDC violation; this motion was also granted. The judgment dismissed the plaintiffs' suit with prejudice. This court found it was error for the trial court to consider the developer's second motion for summary judgment without first setting the no cause of action exception for hearing and ruling on the constitutionality of the amendments to the UDC as they applied to the plaintiffs' claim. Therefore, this court reversed the judgment and remanded the case for further proceedings. Welch, 64 So.3d at 253.

After consideration of the applicable jurisprudence and comparison with the evidence produced in this case in connection with the motion for summary judgment, we conclude that this case differs from those cited by Taylor. The distinguishing factor is that the separate causes of action alleged in the matter before us have a common element. To establish vicarious liability, a plaintiff must prove that the employee's conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer and is not motivated by purely personal considerations entirely extraneous to the employer's interest. See Orgeron, 639 So.2d at 226-27, and Roberts, 605 So.2d at 1041. In order to establish negligent hiring, a plaintiff must prove that the employee causing the injury was engaged in some respect in furthering the employer's business. See Roberts, 605 So.2d at 1039. Under LSA-C.C.P. art. 966(C)(2), once Home Depot introduced evidence establishing that Elsenrath was not motivated by or engaged in furthering Home Depot's interests when he enveloped Taylor in a bear hug and lifted him off the floor, the burden was on Taylor to show that he could establish at trial this essential element common to both causes of action.

After a thorough de novo review of the record, we conclude that Taylor failed to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof on this element at trial. Therefore, the trial court did not err in granting the motion for summary judgment and dismissing Taylor's claims on both causes of action.

CONCLUSION

For the above reasons, we affirm the July 5, 2012 judgment of the trial court that granted the motion for summary judgment and dismissed Taylor's claims against Home Depot.

AFFIRMED.

WELCH, J., dissenting in part.

I respectfully disagree with the opinion to the extent that it affirms the summary judgment rendered on the plaintiff's cause of action for negligent hiring and supervision. The majority acknowledges that the record demonstrates that only the plaintiff's cause of action for vicarious liability was addressed in Home Depot's motion for summary judgment. At the hearing on the motion for summary judgment, the trial court made it clear that it was only ruling on the motion for summary judgment as it related to the vicarious liability claim. When the plaintiff's attorney indicated that there was another theory of liability for negligent hiring and supervision, the trial court stated that it did not want to hear any argument on that theory of liability and that it was only ruling as to what was on the docket before it that day.

In 2010, the legislature amended La. C.C.P. art. 966(E)(1) to provide that "a summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." (Emphasis added). The amendment plainly precludes a trial court from rendering a summary judgment on a matter not set forth in the motion for summary judgment under review by the court. It also clearly precludes this court from affirming a summary judgment rendered on a matter not presented to the trial court on a motion for summary judgment.

The majority justifies affirming the grant of a summary judgment on a theory of liability not addressed in the motion for summary judgment and on which the trial court refused to hear argument on the basis that the considerations relied upon by courts in imposing liability under the two doctrines are similar. I do not believe that Article 966E(1) permits a court to engage in this type of analysis. Instead, I believe that provision requires this court to reverse the summary judgment as it dismissed a theory of liability not raised in the motion for summary judgment under consideration by the trial court.

For these reasons, I would reverse the judgment to the extent that it dismissed all causes of action asserted by the plaintiffs, and I would remand the case for further proceedings.