Employer not vicariously liable for employee misconduct if such misconduct was not committed in furtherance of the employer's business and within the scope of employment
2013 NY Slip Op 08499, Appellate Division, Third Department
The girl friend [GF] of a town police officer [Officer] went to a pub with her girlfriend to purchase beer. GF was involved in a confrontation with the plaintiff that the Appellate Division said the substance of which is subject to considerable dispute. GF and her girlfriend left the bar and returned to Officer's residence. After listening to GF's version of what allegedly transpired at the pub, Officer, accompanied by GF, drove to the pub in GF's car and confronted Plaintiff, in the course of which confrontation Plaintiff suffered various injuries, including a fractured arm and a broken wrist.*
Plaintiff sued Officer and the Town contending, among other things, that the Town was vicariously liable for Officer's actions. The Town moved for summary judgment to dismiss the complaint against it. Supreme Court, finding that Officer was not acting within the scope of his employment at the time of the incident but, rather, was at the pub "as a ticked off boyfriend upset about conduct directed at his girlfriend by Plaintiff," granted the Town’s motion.
The Appellate Division affirmed the Supreme Court’s ruling, explaining that "The doctrine of respondeat superior renders an employer vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Accordingly, "where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment."
Citing Campos v City of New York, 32 AD3 287, leave to appeal denied 8 NY3d 816; appeal dismissed 9 NY3d 593, the Appellate Division said that "[a] municipality cannot be held vicariously liable for acts perpetrated by a member of its police force in the course of engaging in a personal dispute, without any genuine official purpose, whether or not the police officer characterizes such conduct as an arrest or incident to an arrest."
Officer, said the court, by his own admission, was not on duty when he went to the pub and said to Plaintiff "I'm not here as a cop" and when pressed as to his reasons for confronting Plaintiff, Officer acknowledged that he only wanted "to see what [Plaintiff's] side of . . . the story was," and admitted that he was not there to "officially" investigate the alleged assault.
Such proof, said the Appellate Division was, in its our view, was more than sufficient to discharge the Town's initial burden on its motion for summary judgment.
As Plaintiff failed to present sufficient admissible proof to raise a question of fact as to whether Officer was acting within the scope of his employment at the time of the altercation with him, the court said that the Town was entitled to summary judgment dismissing his vicarious liability claims against it.
Addressing a collateral issue, Plaintiff allegation that the Town negligently hired, trained and/or supervised Officer, the Appellate Division said that "To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury."
Although Officer had been convicted of assault in the third degree years earlier, one of the Town's representatives testified that the Town was aware of and discussed this incident with Officer prior to hiring him and that they thereafter did not receive any complaints regarding Officer's behavior. The Appellate Division ruled that “Under these circumstances, Officer's prior conviction — standing alone — was insufficient to put the Town on notice that he ‘was inclined toward conduct such as that which allegedly caused . . . Plaintiff's injuries.’"
* Disciplinary charges subsequently were lodged against Officer, who ultimately resigned from his position.
The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2013/2013_08499.htm