This action resulted from an incident where an off-duty police officer [Officer] was at a social affair and the Plaintiff [Security Guard] in the action was employed as a security guard at that event.
The record indicates that there was a dispute between the Security Guard and the Officer. Security Guard alleged that Officer drew a weapon and pointed it at the Security Guard's head, pulled the trigger of the weapon and although Security Guard heard the weapon "click", it did not fire.
Officer was subsequently subdued, arrested and ultimately convicted of menacing in the Second Degree.
Security Guard initiated the instant action against Officer and Officer's employer [City], contending that, other things, City negligently retained Officer as a police officer, entrusting him with a firearm and the license to carry a firearm. City moved for summary judgment dismissing the complaint insofar as claims asserted against City.
The Appellate Division's decision notes an earlier incident, the "2016 incident", where Officer [1] unlawfully discharged his service weapon into the air while off duty and intoxicated; and [2] was convicted of a misdemeanor [prohibited use of a weapon]. As a result of that incident, Officer lost his privileges to carry a weapon for approximately one year, was demoted, and was required to complete an alcohol treatment program.
With respect to the 2016 incident, which did not involve aggression or violence towards another person, the Employer contended the event "was insufficient to put the City on notice that [Officer] was disposed to engage in the type of violent behavior that occurred [in the course of the subject] incident."
In opposition to the motion, the Security Guard argued, among other things, that the 2016 incident provided the City with sufficient notice of Officer's violent tendencies and that the City was negligent in retaining Officer and restoring him to active duty with firearms.
Supreme Court granted that branch of the City's motion seeking summary judgment dismissing the cause of action alleging it negligently retained Officer as an employee insofar as asserted against it. Officer appealed Supreme Court's ruling.
The Appellate Division said "[U]nder 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. A cause of action for negligent retention, however, requires proof that [1] the employer knew or should have known of the employee's harmful propensities; [2] that it failed to take necessary action; and [3] that this failure proximately caused the plaintiff's injuries."
Addressing the City's motion, the Appellate Division opined that City "established its prima facie entitlement to judgment as a matter of law" by demonstrating that it did not know or have reason to know of Officer's propensity to caused injury as the result of its knowledge of the 2016 incident.
In the course of the 2016 incident Officer discharged his firearm into the air while intoxicated. Such action, opined the Appellate Division, "was insufficient to put the City on notice of any propensity of [Officer] to act violently or aggressively in the manner that he did towards the Security Guard."
The Appellate Division then ruled that Supreme Court "properly granted that branch of the City's motion" seeking summary judgment dismissing the cause of action alleging negligent retention of Officer insofar as asserted against City.
Click HERE to access the Appellate Division's decision posted on the Internet.