October 12, 2018

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment

Questioning if the employer knew or should have known of its employee's propensity for sexual misconduct defeats the employer's motion for summary judgment
Johansmeyer v New York City Dept. of Educ., 2018 NY Slip Op 06518, Appellate Division, Second Department

Anthony Johansmeyer and others [Petitioners] sued the New York City Department of Education and the City of New York [jointly DOE] and Child Center of New York [CC] to recover damages for negligent hiring, supervision, and retention of a member of CC's staff [Employee] alleged to have inflicted acts of sexual abuse and molestation on an infant student. The defendants' motions for summary judgment dismissing the complaint as asserted against each of them was denied by Supreme Court, which ruling was sustained by the Appellate Division.

The Appellate Division explained that "Although an employer cannot be held vicariously liable for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business," citing Fernandez v Rustic Inn, Inc., 60 AD3d 893, an employer may still be held liable under theories of negligent hiring, retention, and supervision of the employee.

However a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury and the employer's negligence lies in having " placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention'" of the employee.

With respect to DOE, the Appellate Division said DOE "failed to make a prima facie showing that the DOE was not negligent with respect to the hiring, retention, and supervision" of Employee and its submissions in support of its motion for summary judgment "raised a triable issue of fact as to whether the DOE took the appropriate measures" to evaluate Employee's "employment and fitness at the time he was allowed to intern at the school." In addition, said the court, there was a triable issue of fact as to whether the DOE had notice of the potential for harm to the infant plaintiff such that its alleged negligence in supervising and retaining Employee "placed [Employee] in a position to cause foreseeable harm."

The court also noted that, in general, liability may not be imposed on school authorities where all of the improper acts against a student occurred off school premises and outside school hours. Here, however, the Appellate Division said that DOE's submissions demonstrated that, although the sexual abuse ultimately occurred in the infant's home," it was preceded by time periods when the infant was alone with Employee during school hours on a regular basis. Thus, triable issues of fact exist as to whether the DOE knew or should have known of such behavior and Employee's propensity for sexual abuse.

The Appellate Division also agreed with Supreme Court's denial CC's cross motion for summary judgment, noting that although CC demonstrated its prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for negligent hiring by submitting the deposition transcript of its administrative director, Plaintiffs had raised a triable issue of fact by submitting Employee's Child Center employee records which indicated that Child Center never checked references, clearances, proof of education, or New York State Sex Offender Registration records.

The decision is posted on the Internet at:

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