Opinion
# 2012-032-009 Claim No. 116213
01-11-2013
PAJTIM SHURDHANI v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2012-032-009 Claimant(s): PAJTIM SHURDHANI Claimant short name: SHURDHANI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The Court sua sponte has amended the caption to reflect name) : the properly named defendant. Third-party claimant (s): Third-party defendant (s): Claim number(s): 116213 Motion number(s): Cross-motion number (s): Judge: JUDITH A. HARD Segan, Nemerov & Singer, P.C. Claimant's attorney: By: Jeffrey Nemerov, Esq. By: William M. Ciment, Esq., Trial Counsel Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Anthony Rotondi, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: January 11, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
FACTS
The claim alleges that on the evening of November 9, 2007, Youth Division Aide Jeffrey Lane (YDA Lane), an employee of the Brookwood Secure Center (Brookwood), assaulted claimant, a resident therein. Claimant alleges YDA Lane intentionally assaulted and battered him and negligently came into contact with claimant (Claim ¶5-9). Further, claimant alleges that defendant was negligent in the operation, management, supervision and control of Brookwood in allowing YDA Lane to be retained as an employee even though defendant knew or should have known of his violent propensities (Claim ¶10-13).
Brookwood is a secure center for housing juvenile offenders between the ages of thirteen and twenty-one, who have been convicted of violent felonies (T:26-27). Claimant testified that while watching a television program starring Donald Trump in the living room of Brookwood, he turned to YDA Lane and told him he was fired using a hand gesture of Mr. Trump made famous by the television show. Claimant then turned back around to watch television (T:14-15). A few moments later, without warning, YDA Lane hit claimant on the back of the head on the lower left side so forcefully that claimant's eyeglasses fell off his head (T:15-17). He claimed he was almost knocked out of his chair (T:17). He had no idea or warning that he was going to be hit (T:17).
During cross-examination, claimant stated that prior to being hit by YDA Lane, he was not trying to escape, not threatening to hurt himself or another resident, not threatening to hurt any YDA, nor encouraging any other resident to do so, and had not refused any order by facility staff (T:19-21).
After the incident claimant stood up and asked YDA Lane why he had hit him. YDA Lane did not respond (T:17-18). Other residents who witnessed the incident laughed at claimant (T:18). Claimant then returned to his room crying (T:18). Thereafter, YDA Lane entered claimant's room, which is a violation of policy at Brookwood, and apologized to claimant (T:19, 36).
Claimant offered the deposition testimony of Patrick Sullivan, the Facility Director of Brookwood. He defined Brookwood as a facility that operates under a childcare modality with children who may have committed a serious crime. YDA Lane started at Brookwood in 2004. Under agency policy, a YDA could not touch a resident unless the resident was a danger to himself or others (T:31-32).He stated that an investigation, spearheaded by Assistant Director McGiffert, was conducted into the allegations of this incident (T:27-28). Mr. Sullivan testified that Mr. McGiffert found there were many violations of policy including: slapping claimant, engaging in horseplay, entering a resident's room, and never reporting the incident (T:35-36). Additionally, there was a finding that two other YDAs, Wunderville and Zahn, who were working with YDA Lane that evening, also failed to report the incident in a timely manner. YDAs Wunderville and Zahn were probationary employees (T:30-31). YDAs Wunderville and Zahn did not make a report of the incident and one resigned and the other was terminated due to their failure to report the incident (T:37). Mr. Sullivan also testified at his deposition that there had been "at least one" previous allegation of physical contact of a resident by YDA Lane (T:38). As part of the supervision of YDA Lane, the facility was aware of Mr. Lane's placement with residents (T:38). Additionally, Mr. Sullivan confirmed that at the time of the incident, YDA Lane was acting in his professional capacity and in the course of his employment (T:39). YDA Lane would have attended a training academy for five weeks and 40 hours of annual updates.
Mr. Sullivan cited a rule pursuant to BSC3247.02-02-General Supervision of Residents-as Brookwood's policy index from agency policy (T:32-33). The agency is presumably the New York State Office of Children and Family Services (9 NYCRR § 7403.3).
After claimant rested, defendant rested without calling a witness or offering documentary evidence.
LAW & DISCUSSION
CCA §10(3-b) provides for a one-year statute of limitations for the intentional tort of an officer or employee of the State while acting as such officer or employee. The claim accrued on November 9, 2007 but the claim was not filed until December 2008. Despite this late filing, the Court shall consider the claim, because defendant has waived objection under CCA §11 (c).
Governmental immunity applies to torts arising from "the negligent performance of a governmental function" (McLean v City of New York, 12 NY3d 194 [2009]). An intentional tort is not covered by such immunity (Greaves v State of New York, 35 Misc 3d 290 [Ct Cl 2011]). The State may be liable for an assault and battery committed by an employee in carrying out their duties under the theory of respondeat superior (Jones v State of New York, 33 NY2d 275 [1973]). Intentional torts can fall within the scope of employment (Riviello v Waldron, 47 NY2d 297 [1979]). It is normally required that the act complained of be in furtherance of the employer's business and within the scope of employment (id). If an employee "departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable" (Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999], citing Jones v Weigand, 134 AD 644, 645 [1909]). In determining whether an act is within the scope of employment, one factor to be weighed is the extent of departure from normal methods of performance. Under 9 NYCRR § 7404.9, the use of physical force by staff at secure facilities "shall be reasonable under the circumstances . . . ."
"To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the [claimant] in imminent apprehension of harmful contact (Gould v Rempel, 99 AD3d 759 [2d Dept 2012]; Bastein v Sotto, 299 AD2d 432 [2d Dept 2002]; Higgins v Hamilton, 18 AD3d 436 [2d Dept 2005]; Cotter v Summit Sec. Servs., Inc., 14 AD3d 475 [2d Dept 2005]).
"A valid claim for battery exists where a person intentionally touches another without that person's consent" (Wende C. v United Methodist Church, N.Y. W. Area, 4 NY3d 293 [2005]). Claimant must prove that there was bodily contact and that the contact was offensive and wrongful under all circumstances (Goff v Clarke, 302 AD2d 725 [3d Dept 2003]). However, an action for battery may be sustained without a showing that the actor intended to cause an injury as a result of the offensive contact (Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32 [1st Dept 2001]); but it is necessary to show that the intended contact was offensive. There must be an intent to make contact (id). Lack of consent is an indicia but not conclusive of offensive contact (Zgraggen v Wilsey, 200 AD2d 818 [3d Dept 1994]). Offensive contact may offend a reasonable sense of personal dignity (PJI 3:3 citing Restatement, [Second] of Torts §19; Prosser and Keeton, Torts [5th Ed] 39, 41-42 §9; 1 Harper and James, The Law of Torts 213, §3.2).
When a Court's determination rests upon credibility and an assessment of the weight of the evidence, great weight should be accorded to a trial court's determination (Davis v State of New York, 203 AD2d 234 [2d Dept 1994]). The Court finds that claimant was a credible and humble witness who was very shaken by the incident. His version of the facts was not challenged by defendant. Despite such credibility, the assault cause of action must fail. First, the Court determines that the amount of force used by YDA Lane was unreasonable. YDA Lane's strong slap to the back of the head, causing claimant's glasses to fly off, is not a reasonable use of force under 9 NYCRR § 7404.9. The forceful slap was hostile and an overreaction to claimant's mere jest. Therefore, defendant would not be liable under respondeat superior, even if the Court conformed the pleadings to the proof.Secondly, claimant failed to prove that he was assaulted because he was hit from behind.He testified that he had no idea or warning that he was going to be hit. Therefore, he was not in imminent apprehension of harmful conduct, an essential element of an assault cause of action.
Respondeat superior was not plead.
Claimant testified that he turned to make the hand gesture and statement then turned back around (T:15).
Claimant proved that a battery occurred. There was bodily contact - a strong slap to the back of claimant's head causing his glasses to fly off - indicating an intent to touch claimant. Claimant did not consent to the contact. However, defendant is not liable for the battery because YDA Lane used unreasonable force placing the action outside his scope of employment for which defendant is not liable.
Negligence
In order to sustain a claim for liability against the State, the Court must consider whether the State's alleged negligence arose out of the performance of a governmental, rather than a proprietary function (see Sebastian v State of New York, 93 NY2d 790 [1999]). If the State's alleged negligence arose out of the performance of a governmental function, the State may be immune from liability. To determine whether the State is so immune, the Court must consider whether a special duty was owed by the State to claimant, apart from any duty owed to the public in general (Valdez v City of New York, 18 NY3d 69 [2011]). If a special duty was owed, the State is liable only for its ministerial actions which violated that special duty (id., citing McLean v City of New York, 12 NY3d 194, 203 [2009]). A governmental employee is shielded from liability for all discretionary acts, even if the conduct was negligent (see Valdez v City of New York, 18 NY3d 69 [2011]; Arteaga v State of New York, 72 NY2d 212 [1988]).
The Court determines that the negligence alleged herein, specifically the striking of claimant by a Youth Division Aide, arose out of the performance of a governmental function. Accordingly, the Court must assess whether defendant owed a special duty to claimant and if so, whether it breached said duty (see Valdez v City of New York, 18 NY3d 69 [2011]).
A special relationship/special duty can be created in one of three ways: (1) by a statute that was enacted for the benefit of a particular class of persons is violated; (2) by voluntary assumption of a duty toward a private party who then justifiably relies on proper performance of that duty; or (3) by assuming positive direction and control in the face of a known, blatant and dangerous safety violation (Pelaez v Seide, 2 NY3d 186, 199-200 [2004], citing Garrett v Holiday Inns, 58 NY2d 253, 261-262 [1983]).
As to the first category, statutory duties or, as described in Pelaez, a special duty created by statute, the Court of Appeals has held that "the governing statute must authorize a private right of action" (Pelaez v Seide, 2 NY3d at 200, citing to Uhr v East Greenbush Cent. School Dist., 94 NY2d 32, supra; Sheehy v Big Flats Community Day, 73 NY2d 629 [1989]; O'Connor v City of New York, 58 NY2d 184 [1983]). While it is preferable for the Legislature to include an express provision within the legislation if it intends to allow private litigants to sue for violation of a statute's provisions (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 325 [1983]), courts may nevertheless recognize an implied right of action where: (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) creation of such a right would also be consistent with the legislative scheme (Pelaez v Seide, 2 NY3d at 200). All three prongs of this test must be satisfied before such a right of action can be recognized, but it is the third factor - whether recognizing a private right of action is consistent with the overall legislative scheme - that has been described as the "most critical" and is the one most difficult to establish (Mark G. v Sabol, 93 NY2d 710, 720 [1999]; Carrier v Salvation Army, 88 NY2d 298, 302[1996]; Brian Hoxie's Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207, 212 [1990]). Thus, even when a statute has been enacted for the particular benefit of a class of persons and allowing private lawsuits would further the legislative purpose, a private right of action will not be recognized if doing so would conflict with, or be inconsistent with, the enforcement mechanisms that were expressly included in the legislation (see e.g., McLean v City of New York, 12 NY3d at 200; Pelaez v Seide, 2 NY3d at 201; Uhr v East Greenbush Cent. School Dist., 94 NY2d at 38; Sheehy v Big Flats Community Day, 73 NY2d at 634-635; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d at 329-330).
To establish a special duty based on the government's voluntary assumption of a duty, the injured party must prove: (1) the assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of a municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) the injured party's justifiable reliance on the municipality's affirmative undertaking (Cuffy v City of New York, 69 NY2d 255 [1987], cited in McLean v City of New York, 12 NY3d at 201; Pelaez v Seide, 2 NY3d at 198-199).
The third method of creating a special duty involves very specific, unique and rather self-evident factual situations (see Smullen v City of New York, 28 NY2d 66 [1971] [city construction inspector assured worker that the sides of a trench were safe; trench collapsed and killed the worker]), and it is occasionally treated as simply an example of the second category, voluntary assumption of a duty (see e.g., Browne v Town of Hempstead, 110 AD2d 102 [2d Dept 1985]; Hill v City of Schenectady, 91 AD2d 1126 [3d Dept 1983]).
Assuming without determining that a special duty was owed to claimant by defendant, claimant did not offer any proof that YDA Lane acted negligently. Accordingly, to the extent claimant alleges in his claim that YDA Lane unintentionally or negligently struck him, it is without merit.
Negligent Supervision and Retention
Governments are not immune for proprietary acts (see Sebastian v State of New York, 93 NY2d 790 [1999]). The act of hiring, retaining and supervising an employee is not solely a governmental act. Such actions are shared with non-governmental or proprietary employers. Therefore, immunity is not afforded to defendant in this cause of action.
Under the doctrine of respondeat superior an employer may be liable when an employee acts negligently or intentionally, if the tortious conduct is foreseeable and is a natural incident of employment (Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [1999]); citing Riviello v Waldron, 47 NY2d 297 [1979]). Here, since the Court has determined that YDA Lane was acting outside the scope of his employment, a claim for negligent hiring, retention and supervision may proceed (cf. Karoon v New York City Tr. Auth., 241 AD2d 323 [1st Dept 1997]).
Under a negligent retention theory, a claimant must establish that an employer knew or should have known of the employee's propensity for the sort of conduct that caused the injury (Johnson v State of New York, UID No. 2008-030-025 [Ct Cl, Scuccimarra, J., Nov. 25, 2008]; citing Detone v Bullit Courier Serv., 140 AD2d 278 [1st Dept 1988], lv denied 73 NY2d 702 [1988]). "Negligent supervision requires a showing that the employer knew or should have known- had the supervision been adequate-of the employee's propensity for the type of conduct which injured claimant" (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2d Dept 1997]; Johnson v State of New York, UID No. 2008-030-025 [Ct Cl, Scuccimarra, J., Nov. 25, 2008]; citing Prentice v State of New York, UID No. 2004-009-01 [Ct Cl, Midey, J., Mar. 30, 2004]; Jablonski v State of New York, UID No. 2001-028-0010 [Ct Cl, Sise J., Apr. 10, 2001]). The issue is whether the employer placed the employee in a position to cause foreseeable harm which could have been spared if the employer had taken reasonable care in the hiring and retention of its employees (Detone v Bullit Courier Serv., 140 AD2d 278 [1st Dept 1988], lv denied 73 NY2d 702 [1988]).
A single prior altercation is not sufficient to put defendant on notice of alleged violent propensities to assault others (Clark C.B. v Fuller, 59 AD3d 1030 [4th Dept 2009]; Zanghi v Laborer's Intl. Union of N. Am., AFL-CIO, 8 AD3d 1033 [4th Dept 2004]; Morman v Ossining Union Free School Dist., 297 AD2d 788 [2d Dept 2002]; Velez v Freeport Union Free School Dist., 292 AD2d 595 [2d Dept 2002]). The failure to establish this necessary element negates the employer's liability as a matter of law (Naegele v Archdiocese of N.Y., 39 AD3d 270 [1st Dept 2007]). Further, a Court should analyze the nature of the prior incidents (Morman v Ossining Union Free School Dist., 297 AD2d 788 [2d Dept 2002]; Velez v Freeport Union Free School Dist., 292 AD2d 595 [2d Dept 2002]).
Mr. Sullivan's testimony that there was at least one prior altercation involving YDA Lane is the only evidentiary proof before this Court concerning claimant's past acts. The nature of the facts of such incident were not revealed at trial. Therefore, claimant did not prove that YDA Lane had a violent propensity to assault others, an essential element to the negligent hiring, retention and supervision causes of action.
In view of the foregoing, the Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witness, finds that claimant failed to prove his case by a preponderance of the credible evidence. All motions not heretofore addressed are denied. The claim is dismissed.
Let judgment be entered accordingly.
January 11, 2013
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims