Opinion
No. 2021-03428 Index No. 53156/17
05-22-2024
Robert Lea, respondent, v. Bridget McNulty, appellant, et al., defendant.
MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, NY (Jeffery D. Sherwin and Nicholas J. Berwick of counsel), for appellant. Raymond J. Iaia, Kingston, NY, for respondent.
MacVean, Lewis, Sherwin & McDermott, P.C., Middletown, NY (Jeffery D. Sherwin and Nicholas J. Berwick of counsel), for appellant.
Raymond J. Iaia, Kingston, NY, for respondent.
VALERIE BRATHWAITE NELSON, J.P., DEBORAH A. DOWLING, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Bridget McNulty appeals from an order of the Supreme Court, Dutchess County (Michael G. Hayes, J.), dated April 23, 2021. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against her.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendant Bridget McNulty which were for summary judgment dismissing the causes of action alleging, in effect, vicarious liability, and for intentional infliction of emotional distress insofar as asserted against her, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff allegedly was injured when the defendant Shane Baker struck the plaintiff in the face while on a farm owned by the defendant Bridget McNulty (hereinafter the defendant). The plaintiff thereafter commenced this action to recover damages for personal injuries, alleging, in effect, inter alia, causes of action against the defendant sounding in premises liability, negligent hiring, retention, supervision, and training, and vicarious liability, and causes of action for negligent infliction of emotional distress and intentional infliction of emotional distress. The defendant moved for summary judgment dismissing the complaint insofar as asserted against her. In an order dated April 23, 2021, the Supreme Court denied the motion. The defendant appeals.
The Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging, in effect, premises liability. "A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties" (Bryan v Crobar, 65 A.D.3d 997, 999; see Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 518-519; Davis v Commack Hotel, LLC, 174 A.D.3d 501, 502). "To establish foreseeability, there is no requirement that the past experience of criminal activity be of the same type as that to which the plaintiff was subjected" (Bryan v Crobar, 65 A.D.3d at 999; see Jacqueline S. v City of New York, 81 N.Y.2d 288, 294-295; Davis v Commack Hotel, LLC, 174 A.D.3d at 502). However, "the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location" (Novikova v Greenbriar Owners Corp., 258 A.D.2d 149, 153; see Davis v Commack Hotel, LLC, 174 A.D.3d at 502). Accordingly, landowners "have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control" (D'Amico v Christie, 71 N.Y.2d 76, 85).
Here, the defendant failed to establish her prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging, in effect, premises liability. The defendant's evidence failed to eliminate triable issues of fact regarding her specific knowledge of Baker's intention to harm the plaintiff, the plaintiff's authorization to be on the farm, and the foreseeability that Baker and the plaintiff would encounter each other on the farm on the night of the assault. The defendant thereby failed to eliminate triable issues of fact as to her opportunity to control Baker's conduct prior to the assault and her awareness of the need to do so (see Davis v Commack Hotel, LLC, 174 A.D.3d at 503; Panzera v Johnny's II, 253 A.D.2d 864, 865).
The Supreme Court also properly denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging, in effect, negligent hiring, retention, supervision, and training. To establish this cause of action, a plaintiff must demonstrate that "'the employer knew or should have known of the employee's propensity for the conduct which caused the injury'" (Guarino v ProHEALTH Care Assoc., LLP, 219 A.D.3d 467, 468, quoting Barton v City of New York, 187 A.D.3d 976, 978). "The employer's negligence lies in his having placed the employee in a position to cause foreseeable harm" that could have been avoided "had the employer taken reasonable care in making decisions respecting the hiring and retention of his employees" (Detone v Bullit Courier Serv., 140 A.D.2d 278, 279). Here, the defendant failed to establish her prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging, in effect, negligent hiring, retention, supervision, and training as she failed to demonstrate that Baker's employment on the farm did not place him in a position to cause foreseeable harm to the plaintiff (see D.T. v Sports & Arts in Schs. Found., Inc., 193 A.D.3d 1096, 1097-1098).
The Supreme Court also properly denied that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging negligent infliction of emotional distress. A cause of action to recover damages for negligent infliction of emotional distress "generally must be premised upon the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety, or causes the plaintiff to fear for his or her own safety" (Santana v Leith, 117 A.D.3d 711, 712 [internal quotation marks omitted]). Here, the defendant failed to eliminate all triable issues of fact as to whether she breached her duty to the plaintiff.
The Supreme Court, however, erred in denying that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging intentional infliction of emotional distress. Intentional infliction of emotional distress consists of four elements: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., 81 N.Y.2d 115, 121; see Davydov v Youssefi, 205 A.D.3d 881, 883). "In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law" (Howell v New York Post Co., 81 N.Y.2d at 121), since it is "rigorous, and difficult to satisfy" (Taggart v Costabile, 131 A.D.3d 243, 249 [internal quotation marks omitted]). To satisfy the outrageousness element, the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp., 58 N.Y.2d 293, 303).
Here, the defendant established, prima facie, that her conduct, which was allegedly labeling the plaintiff's relations with Baker's girlfriend as nonconsensual and paying for one-half of the restitution Baker had to pay in connection with the assault on the plaintiff, cannot, as a matter of law, be characterized as so "extreme and outrageous" that it exceeds "all possible bounds of decency" (Howell v New York Post Co., 81 N.Y.2d at 122; see Tueme v Lezama, 217 A.D.3d 715, 718; Matthaus v Hadjedj, 148 A.D.3d 425, 425-426). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging intentional infliction of emotional distress.
The Supreme Court also should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging, in effect, vicarious liability. Although the defendant failed to establish that Baker was not the defendant's employee at the time of the assault (see Fils-Aime v Ryder TRS, Inc., 40 A.D.3d 917, 917-918; Maurillo v Park Slope U-Haul, 194 A.D.2d 142, 146-147), to succeed against an employer for the tortious conduct of its employee under the doctrine of respondeat superior, the employee must have been acting in furtherance of the employer's business and within the scope of his or her employment (see N.X. v Cabrini Med. Ctr., 97 N.Y.2d 247, 251; Riviello v Waldron, 47 N.Y.2d 297, 302; Browne v Lyft, Inc., 219 A.D.3d 445, 446). "Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" (Judith M. v Sisters of Charity Hosp., 93 N.Y.2d 932, 933; see Riviello v Waldron, 47 N.Y.2d at 304). "An employee's actions fall within the scope of employment where the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" (Montalvo v Episcopal Health Servs., Inc., 172 A.D.3d 1357, 1359 [internal quotation marks omitted]; see Beauchamp v City of New York, 3 A.D.3d 465, 466; Stavitz v City of New York, 98 A.D.2d 529, 531).
Here, the defendant established, prima facie, that Baker's assault on the plaintiff did not fall within the scope of Baker's employment, and that Baker's conduct was not a generally foreseeable or natural incident of his duties at the farm, which did not require the use of force. Moreover, the assault did not further the defendant's business interests in any way. Rather, Baker assaulted the plaintiff for purely personal reasons, rendering his assault on the plaintiff outside the scope of Baker's employment (see Rivera v State of New York, 34 N.Y.3d 383, 389; Maldonado v Allum, 208 A.D.3d 470, 470-471; Fernandez v Rustic Inn, Inc., 60 A.D.3d 893, 896). In response to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.
Therefore, the Supreme Court erred in denying those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging, in effect, vicarious liability, and for intentional infliction of emotional distress insofar as asserted against her, and we modify the order accordingly.
The defendant's remaining contention is improperly raised for the first time on appeal.
BRATHWAITE NELSON, J.P., DOWLING, VOUTSINAS and LOVE, JJ., concur.