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Monday, May 04, 2015

A police department may not be liable injuries caused by a police officer if the officer was not acting "within the scope of his or her employment and in furtherance of the employer's business."



A police department may not be liable injuries caused by a police officer if the officer was not acting "within the scope of his or her employment and in furtherance of the employer's business."
2015 NY Slip Op 03496, Appellate Division, Second Department

Among the defendants in this wrongful death action involving a police officer [Officer] were Officer’s employers: the Town Police Department and Town [Defendants]. 

The complaint alleged that Officer was handling his "off-duty handgun" when it went off and killed his friend, the deceased victim [Victim]. The Administrator of Victim’s estate and family members sued the Defendants, alleging, in relevant part, that Defendants were liable for the Victim’s death because Defendants were negligent in the hiring, retention, and supervision” of Officer. It was also claimed that the Defendant's were "vicariously liable" for Victim’s death pursuant to the doctrine of respondeat superior.

Supreme Court denied Defendants’ motions to dismiss them from the action “for failure to state a cause of action.” Defendants appealed. The Appellate Division ruled that Supreme Court should have granted Defendants’ motions to dismiss the complaint as to them.

As to the Administrator’s “negligent hiring, retention and supervision” claims, the Appellate Division explained that a necessary element of this cause of action is that the "employer knew or should have known of the employee's propensity for the conduct which caused the injury." 

Here, said the Appellate Division, the evidentiary material submitted by Administrator failed to demonstrate that Defendants were guilty of the alleged “negligent hiring, retention, or supervision” of Officer.

Addressing that part of  Administrator’s compliant that alleged Defendants were vicariously liable pursuant to the doctrine of respondeat superior, the Appellate Division said that the doctrine of respondeat superior requires a showing that alleged wrongdoing committed by the employer’s employee occurred while that employee was acting “within the scope of employment and in furtherance of the employer's business."

The Appellate Division found that although Administrator’s complaint “generally alleged” that Officer was acting within the scope of his employment and in furtherance of the Defendant’s' purpose, the fact alleged by Administrator was “not a fact at all” and “no significant dispute exists regarding it.”  Again, said the Appellate Division, the Supreme Court “should have granted” Defendants’ motion to dismiss the part of Administrator’s cause of action.

The decision is posted on the Internet at:



Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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