Thursday, April 13, 2017


ARRASATE v. WESTHAMPTON BEACH UFSD, 2017 NY Slip Op 30508 - NY: Supreme Court 2017  wherein a teacher was convicted of unlawful surveillance in the second degree and endangering the welfare of a child for placing a cell phone in a school locker room and video recorded it.

"With regard to the School District defendants' motion for summary judgment, "[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training" (Quiroz v Zottola, 96 AD3d 1035, 1037, 948 NYS2d 77 [2d Dept 2012]; see Timothy Mc. v Beacon City Sch. Dist., 127 AD3d 826, 7 NYS3d 348 [2d Dept 2015]). Here, the School District defendants established their prima facie entitlement to summary judgment as a matter of law dismissing the portions of plaintiffs' complaint alleging that they may be held vicariously liable for Sheppard's misconduct, as the alleged conduct is a clear departure from the scope of a physical education teacher's employment, and is unrelated to the furtherance of their business (see "John Doe 1" v Board of Educ. of Greenport Union Free Sch. Dist., 100 AD3d 703, 955 NYS2d 600 [2d Dept 2012]; N.X. v Cabrini Med. Ctr., 97 NY2d 247, 739 NYS2d 348 [2002]; Dia CC v Ithaca City Sch. Dist., 304 AD2d 955, 758 NYS2d 197 [3d Dept 2003]).

As to the claims of negligent hiring and negligent supervision, a plaintiff must show that the employer was on notice of a propensity to commit the alleged acts in order to recover against an employer for negligent retention or negligent supervision of an employee (see Doe v Chenango Val. Cent. School Dist., 92 AD3d 1016, 938 NYS2d 360 [3d Dept 2012]; G.G. v Yonkers Gen. Hosp., 50 AD3d 472, 858 NYS2d 11 [1st Dept 2008]; Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 [2d Dept 2005]). Here, the School District defendants established that they did not have notice of Sheppard's propensity to commit the alleged acts. Miller testified at her deposition testimony that she conducted an interview of Sheppard, which was followed by interviews of him conducted by the athletic director and a committee of teachers. She testified that after the assistant superintendent and superintendent performed reference checks on Sheppard, he was hired because he had extraordinarily strong references, connected with the students during the teaching demonstration, and was able to coach multiple sports. Furthermore, Miller testified that Sheppard had no blemish on his record and that parents and students wanted him as a teacher. In opposition, plaintiffs failed to raise a triable issue of fact. While plaintiffs contend that Miller did not have personal knowledge regarding any reference or fingerprint checks relating to Sheppard's hiring, an employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past (see Day v J. Vlachos Hellenic Serv. Station, Inc., 2 AD3d 482, 767 NYS2d 893 [2d Dept 2003]; Yeboah v Snapple, Inc., 286 AD2d 204, 729 NYS2d 32 [1st Dept 2001]). Nevertheless, there is no evidence to suggest that Sheppard had a criminal history prior to the subject incident.

The complaint does not assert a cause of action alleging infliction of emotional distress. However, to the extent that any of the causes of action against the School District defendants could be construed to include a claim for negligent infliction of emotional distress, to establish such a claim, a plaintiff must demonstrate "[a] breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness" (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6, 852 NYS2d 1 [2008]; see Sawitsky v State of New York, 146 AD3d 914, 46 NYS3d 423 [2d Dept 2017]; Taggart v Costabile, 131 AD3d 243, 14 NYS3d 388 [2d Dept 2015]). Moreover, such an action generally requires a plaintiff to show a breach of a duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety (see Sacino v Warwick Val. Cen. School Dist., 138 AD3d 717, 29 NYS3d 57 [2d Dept 2016]). Here, the intervening act of Sheppard in using his cell phone in an attempt to record infant plaintiff and other students in the girls' locker room is a superseding cause which severed the causal nexus between the School District defendants' alleged negligence and the claimant's alleged injuries. Moreover, nothing in the evidence demonstrates that infant plaintiff's physical safety was unreasonably endangered or that she was caused to fear for her own safety.

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