Workplace Violence and the Employer's Liability

Saturday, May 6, 2006 | 0

By Larry Rogak

Venice Carnegie v. J.P. Phillips Inc., 2005-00719 (Index no. 14829/2001) (2d Dept 2006)

The plaintiff alleged that in April 2000 he was assaulted at his place of employment by the defendant Donald Siering. Siering was employed by J.P. Phillips, Inc., a subcontractor performing work at the building where the plaintiff was employed. The complaint premised the J.P. Phillips' liability on theories of respondeat superior and negligent hiring and supervision. Supreme Court, Kings County, denied summary judgment to Phillips. The Appellate Division reversed. "The appellant contends that, as a matter of law, it cannot be held liable for Siering's conduct based on either of the asserted grounds. We agree."

"An employer is vicariously liable for its employees' torts, even where the offending employee's conduct was intentional, if the acts were committed while the employee was acting within the scope of his or her employment. However, the employer bears no vicarious liability where the employee committed the tort for personal motives unrelated to the furtherance of the employer's business. Similarly, the employer is not vicariously liable where the employee's tortious conduct could not have been reasonably expected by the employer. In the instant case, Siering's alleged conduct was, as a matter of law, not within the scope of his employment, nor was it reasonably foreseeable."

"Similarly, as a matter of law, the appellant was not liable for Siering's alleged conduct under theories of negligent hiring or negligent supervision. In this regard, the plaintiff presented no evidence of a required element of such claims, i.e., that the employer knew or should have known of the employee's propensity for the conduct resulting in the injury. Moreover, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee."

The case against Phillips was dismissed and severed from the other defendants.

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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