Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department

An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”

The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*

The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”

As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”

The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.

Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.

* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL