Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities
Gonzalez v City of the New York, 2015 NY Slip Op 06869, Appellate Division, First Department
This action arose from the shooting death of Shirley Fontanez by her boyfriend, a New York City Police Officer, Frederick Maselli, at his home, on July 23, 2007. After the shooting, Maselli killed himself. Plaintiff Keyla Virginia Gonzalez, as administrator of the Estate of Fontanez, alleged that numerous complaints were made to the City of New York concerning Maselli's abusive conduct toward Fontanez and her daughter, that the City was negligent in hiring, training, supervising and retaining Maselli, and in failing to take action to remove his firearm, and thereby caused Fontanez's wrongful death.
Although Supreme Court granted the City’s motion for summary judgment dismissing the action on the ground that any negligence on City's part for failing to discharge a police officer with violent propensities could not have been the proximate cause of Fontanez's death, since at the time of the fatal shooting, Maselli was off-duty and was acting outside the scope of his employment, the Appellate Division disagreed and said that the dispositive issue that to be resolved was whether the fact that the police officer was off duty when he committed the fatal shooting breaks any connection, as a matter of law, between the fatal injuries and the employer's alleged negligence regarding an employee with violent propensities.
The Appellate Division found that under the circumstances, this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities. When such questions of breach of duty and proximate cause exist, summary judgment is not proper. These questions of fact, said the court, must be reserved for the jury.
In its analysis of the relevant law involved, the Appellate Division noted, in part, the following:
1. Citing Haddock v City of New York, 75 NY2d 478, the court said that in this case the alleged duty owed to plaintiff stems from New York's long recognized tort of negligent hiring and retention and this tort applies equally to municipalities and private employers.
2. Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment in contrast to employer liability under legal doctrine of "respondeat superior," where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee's duties or in furtherance of the employer's interests.
Here, said the court, the alleged breach of duty stems from the claim that during the Maselli’s employment with the City, the City became aware or should have become aware of problems with the police officer that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that Fontanez's damages were caused by the City's negligent retention, or supervision of Maselli. The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment.
3. New Yorkcourts have held governmental employers liable for placing employees, like police officers who are known to be violent, in positions in which they can harm others.
4. The torts of negligent retention and supervision of governmental employees with dangerous propensities do not specifically require allegations that the employees' misconduct occur within the course and scope of the employment. Rather, what the plaintiff must demonstrate is a connection or nexus between the plaintiff's injuries and the defendant's malfeasance.
The Appellate Division said that in its view, both the type of harm that occurred and the person upon whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law and it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend.
Finally, the Appellate Division said it was aware of the fact that all police personnel involved in this case have adamantly denied ever receiving even a single complaint about Maselli’s alleged violent propensities. In contrast, said the court, Plaintiff Gonzalezhas presented evidence that the City was informed on numerous occasions, prior to the fatal shooting, about Maselli’s abusive conduct toward Fontanez and her daughter.
Under the circumstances, the Appellate Division ruled that this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities.
When such questions of breach of duty and proximate cause exist, summary judgment is not proper. Reversing the ruling of the Supreme Court, the Appellate Division held that “[T]hese questions of fact must be reserved for the jury and Supreme Court should not have granted the City's motion for summary judgment on the issue of proximate cause.”
The decision is posted on the Internet at: