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December 22, 2017

Vicariously liability for torts committed by an employee acting within the scope of the employment may require determining the employing entity


Vicariously liability for torts committed by an employee acting within the scope of the employment may require determining the employing entity
Gadson v City of New York, 2017 NY Slip Op 08657, Appellate Division, Second Department

In an action to recover damages for negligence, negligent hiring and negligent retention, intentional infliction of emotional distress, prima facie tort, and slander the defendants, City of New York and Department of Education of the City of New York [DOE], moved for summary judgment dismissing the complaint. Insofar as relevant to this appeal, the Supreme Court denied the motion and DOE appealed.

The Appellate Division first addressed the claims alleging negligence and negligent hiring and negligent retention. DOE contended that the individual, a janitor, who allegedly insulted the plaintiff's daughter was not an employee of the DOE, but rather, an employee of a nonparty independent contractor identified only as "Temco" and thus DOE could not be held liable under the doctrine of respondeat superior.

The Appellate Division, citing Judith M. v Sisters of Charity Hosp., 93 NY2d 932, said the doctrine hold an employer "vicariously liable for torts committed by an employee acting within the scope of the employment."

In contrast, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts [see Rosenberg v Equitable Life Ass. Soc. of U.S., 79 NY2d 663].

The court noted that "despite some evidence that Temco had been providing services to the subject middle school for more than 11 years," DOE did not submit any signed contract with Temco or offer any other evidentiary proof in admissible form establishing that such a contract exists. Further, said the court, DOE "failed to submit any evidentiary proof in admissible form establishing that the janitor in question was an employee of Temco at the time of the incident."

As DOE failed to establish, prima facie, that the janitor in question was the employee of an independent contractor retained to provide janitorial services to the subject middle school, the Appellate Division ruled that Supreme Court properly denied its motion for summary judgment dismissing the causes of action to recover damages for negligence and negligent hiring and negligent retention.

Addressing Supreme Court denial of DOE's motion for summary judgment dismissing the causes of action to recover damages for intentional infliction of emotional distress, prima facie tort, and slander, the Appellate Division ruled that Supreme Court should have granted those motions. The court explained that to maintain and action to recover damages for intentional infliction of emotional distress, DOE established, prima facie, as a matter of law, that the isolated incident of name calling by the janitor, while unquestionably objectionable, did not rise to the level of extreme and outrageous conduct required to sustain such a cause of action."

Turning to the claims of the plaintiff with respect to recovering damages for slander, the Appellate Division established, prima facie, as a matter of law, that the janitor's statements were nonactionable expressions of opinion, and not facts, about the plaintiff's daughter. Further, said the court, DOE established, prima facie, that the plaintiff did not incur special damages, a necessary element of the prima facie tort cause of action .

The decision is posted on the Internet at:

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