Opinion
1019 CA 18–00032
11-09-2018
Kimberly STRIBING, Plaintiff–Appellant, v. BILL GRAY'S INC., Defendant–Respondent, and Shaniqua R. Hartfield, Defendant.
SHAW & SHAW P.C., HAMBURG (CHRISTOPHER M. PANNOZZO OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICE OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT–RESPONDENT.
SHAW & SHAW P.C., HAMBURG (CHRISTOPHER M. PANNOZZO OF COUNSEL), FOR PLAINTIFF–APPELLANT.
LAW OFFICE OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained as a result of an assault by defendant Shaniqua R. Hartfield in the parking lot of a restaurant owned and operated by defendant Bill Gray's Inc. (defendant). Hartfield was defendant's employee and was at work on the day of the assault. Shortly before the assault, Hartfield's shift was terminated by defendant's manager because Hartfield was engaged in a loud and disruptive cell phone conversation while working. After being told that her shift was terminated, Hartfield was directed by defendant's manager to leave the premises. Hartfield changed out of her work uniform, clocked out, and left the restaurant building. While in the parking lot, Hartfield continued her loud and disruptive cell phone conversation. Defendant's manager sent an employee out to the parking lot to supervise the situation. Meanwhile, an unknown person had called 911 and sirens could be heard as police vehicles approached the restaurant. Plaintiff was seated in the outside dining area of the restaurant and signaled to Hartfield with what witnesses described as the "shush" sign. Hartfield responded by striking plaintiff in the head from behind. According to the deposition testimony of plaintiff's daughter, an eyewitness to the assault, the situation "escalated very quickly" and the assault happened "very fast." Defendant moved for summary judgment dismissing the complaint against it. Supreme Court granted the motion, and we affirm.
Contrary to plaintiff's contention, defendant established as a matter of law that the doctrine of respondeat superior is inapplicable because Hartfield was not acting within the scope of her employment at the time of the assault. The doctrine of respondeat superior renders an employer "vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" ( N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ). Although the issue whether an employee is acting within the scope of his or her employment is generally a question of fact, summary judgment is appropriate "in a case such as this, in which the relevant facts are undisputed" ( Carlson v. Porter [appeal No. 2], 53 A.D.3d 1129, 1131, 861 N.Y.S.2d 907 [4th Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008] ). Here, we conclude that defendant met its initial burden of establishing that Hartfield's assault of plaintiff was not committed in furtherance of defendant's business and was not within the scope of employment (see Burlarley v. Wal–Mart Stores, Inc., 75 A.D.3d 955, 956–957, 904 N.Y.S.2d 826 [3d Dept. 2010] ; Zanghi v. Laborers' Intl. Union of N. Am., AFL–CIO, 8 A.D.3d 1033, 1034, 778 N.Y.S.2d 607 [4th Dept. 2004], lv denied 4 N.Y.3d 703, 790 N.Y.S.2d 650, 824 N.E.2d 51 [2005] ), and plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
Contrary to plaintiff's further contention, defendant established as a matter of law that it is not liable under the theories of negligent hiring, retention, and supervision of Hartfield. It is well settled that a defendant may be held liable under those theories for the conduct of an employee only if the defendant knew or should have known of the employee's alleged violent propensities (see Ronessa H. v. City of New York, 101 A.D.3d 947, 948, 957 N.Y.S.2d 188 [2d Dept. 2012] ; Yeboah v. Snapple, Inc., 286 A.D.2d 204, 205, 729 N.Y.S.2d 32 [1st Dept. 2001] ). Here, we conclude that defendant met its initial burden by establishing that it neither knew nor should have known of Hartfield's alleged violent propensities, and plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). We likewise conclude that, contrary to plaintiff's contention, the court properly granted defendant's motion with respect to plaintiff's claim that defendant was negligent under a theory of premises liability (see generally Wirth v. Wayside Pub, Inc., 142 A.D.3d 1346, 1347, 38 N.Y.S.3d 302 [4th Dept. 2016] ).