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January 27, 2011

Negligent hiring and retention of an employee

Negligent hiring and retention of an employee
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464

In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.

The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.

The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:

1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.

2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.

3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.

In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.

The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.

The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.

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