| Fernandez v Rustic Inn, Inc. |
| 2009 NY Slip Op 02320 [60 AD3d 893] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Eduardo Fernandez, Respondent, v Rustic Inn, Inc., et al.,Respondents, and Home Depot U.S.A., Inc., Appellant, et al.,Defendant. |
—[*1] Stanford J. Bandelli, Brooklyn, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Home Depot U.S.A.,Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, RichmondCounty (Maltese, J.), dated April 10, 2008, as denied those branches of its motion which werefor summary judgment dismissing the complaint insofar as asserted against it to the extent thatits seeks recovery on a theory of respondeat superior, and dismissing all cross claims insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the motion of the defendant Home Depot U.S.A., Inc., which were forsummary judgment dismissing the complaint insofar as asserted against it to the extent that itseeks recovery on a theory of respondeat superior and dismissing all cross claims insofar asasserted against it are granted.
In December 2003 the defendant John Mills was employed by the defendant Home DepotU.S.A., Inc. (hereinafter Home Depot), as an overnight stock associate at one of its stores. Inorder to enable Mills to perform his duties, which included opening boxes of inventory, HomeDepot issued him a utility knife. However, since the utility knife allegedly was poorly suited forcutting through shrink wrap, a fellow employee gave Mills one of the box cutters which weresold at the Home Depot store where they both worked.
On the night of December 22, 2003 Mills attended an employee Christmas party at the [*2]store. In accordance with company policy, Home Depot did notserve alcoholic beverages at the holiday party. At about 11:30 p.m. Mills left the Home Depotparty and went to the Rustic Inn, where other employees and their friends had gathered for an"after party." While at the Rustic Inn, Mills allegedly consumed alcoholic beverages and becameintoxicated. At about 3:00 a.m. on December 23, 2003 Jessica Aponte, a coworker acting as adesignated driver, agreed to drive Mills to his residence in a borrowed car. Mills fell asleep inthe car that Aponte borrowed, and Aponte's boyfriend, the plaintiff Eduardo Fernandez,attempted to wake Mills up by shaking him. According to the plaintiff, after being roused fromsleep, Mills pulled out his Home Depot box cutter, and slashed him across his face and back. Asa result of this incident, Mills was arrested and convicted of assault in the second degree andcriminal possession of a weapon in the fourth degree.
The plaintiff subsequently commenced this personal injury action asserting several causes ofaction seeking, inter alia, to hold Home Depot liable for his injuries on theories of respondeatsuperior, negligent hiring and supervision, negligent entrustment, and violation of the DramShop Act (General Obligations Law § 11-101). The plaintiff also asserted a Dram Shopclaim against the defendant Rustic Inn, Inc., the owner of the Rustic Inn.
After depositions had been conducted, Home Depot moved for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, contending that thedoctrine of respondeat superior did not apply because Mills was acting outside the scope of hisemployment when he intentionally assaulted the plaintiff. Home Depot also argued that theplaintiff could not recover on theories of negligent hiring and supervision, or negligententrustment, since it had conducted a background check on Mills which revealed only a sealedjuvenile record, and he had never demonstrated any threatening behavior prior to the assault.Furthermore, Home Depot sought summary dismissal of the plaintiff's Dram Shop claim becauseit had not served alcohol at its holiday party.
The Supreme Court, in effect, granted those branches of Home Depot's motion which werefor summary judgment dismissing the negligent hiring and supervision, negligent entrustment,and Dram Shop causes of action, noting that it was undisputed that Home Depot had not engagedin the commercial sale of alcohol, and that there was no evidence that Home Depot knew orshould have known that Mills had a propensity for violent conduct. However, the court deniedthe branch of Home Depot's motion which was for summary judgment dismissing the complaintto the extent that its seeks recovery on a theory of respondeat superior, noting that there wereallegations that it was common practice for employees to use box cutters in the course of theiremployment, and that while Home Depot rules required employees to place their equipment inlockers at the end of their shifts, the store had allegedly failed to assign Mills a locker. The courtconcluded that these allegations were sufficient to raise a triable issue of fact as to whetherMills's conduct was "generally foreseeable by Home Depot [so] as to hold it liable under thedoctrine of respondeat superior." We disagree.
As a general rule, a defendant "has no duty to control the conduct of third persons so as toprevent them from harming others, even where as a practical matter defendant can exercise suchcontrol" (D'Amico v Christie, 71 NY2d 76, 88 [1987]). Certain relationships, however,including the relationship between an employer and employee, may give rise to a duty toexercise control (id. at 88). Under the doctrine of respondeat superior, an employer canbe held vicariously liable for [*3]the torts committed by anemployee acting within the scope of the employment (see Judith M. v Sisters of CharityHosp., 93 NY2d 932, 933 [1999]; Riviello v Waldron, 47 NY2d 297, 302 [1979]).Pursuant to the doctrine, "the employer may be held liable when the employee acts negligently orintentionally, so long as the tortious conduct is generally foreseeable and a natural incident of theemployment" (Judith M. v Sisters of Charity Hosp., 93 NY2d at 933). However, liabilitywill not attach for torts committed by an employee who is acting solely for personal motivesunrelated to the furtherance of the employer's business (see Carnegie v J.P. Phillips, Inc.,28 AD3d 599, 600 [2006]; Schuhmann v McBride, 23 AD3d 542, 543 [2005];Oliva v City of New York, 297 AD2d 789, 790 [2002]; Vega v Northland Mktg.Corp., 289 AD2d 565, 566 [2001]).
Here, Home Depot made a prima facie showing of its entitlement to judgment as a matter oflaw dismissing the complaint insofar as asserted against it, to the extent that it is predicated onthe doctrine of respondeat superior, by submitting evidence demonstrating that the assault tookplace away from its premises several hours after Mills had left a holiday party, and that hisassault on the plaintiff was committed for personal motives unrelated to the furtherance of hisemployment (see Schuhmann v McBride, 23 AD3d at 543; Oliva v City of NewYork, 297 AD2d at 790; Vega v Northland Mktg. Corp., 289 AD2d at 566).Regardless of whether it is generally foreseeable that an employee who has allegedly not beenassigned a locker might retain company-owned tools or equipment on his or her person whileaway from his or her place of employment, it cannot be said that Mills was acting within thescope of his employment in committing an assault completely unrelated to the furtherance ofHome Depot's business. In opposition to Home Depot's showing in this regard, the plaintifffailed to raise a triable issue of fact as to whether Mills was acting within the scope of hisemployment.
Furthermore, we reject the plaintiff's alternative contention that his negligence claims againstHome Depot need not be summarily dismissed in their entirety even if Mills were acting outsideof the scope of his employment because Mills committed the assault with a box cutter allegedlyowned by Home Depot. The Restatement (Second) of Torts § 317 posits that an employerhas a duty to control the conduct of an employee, even outside the scope of employment, wherethe employee "is using a chattel of the master." Even if the courts of this State were to adopt thisRestatement rule (see D'Amico v Christie, 71 NY2d at 88), it is applicable only where,inter alia, the employer "knows or should know of the necessity and opportunity for exercisingsuch control" (Restatement [Second] of Torts § 317).
Here, it is undisputed that the assault occurred away from Home Depot's store, and there isno evidence that Home Depot knew or should have known that Mills had violent propensitieswhich might arguably warrant restricting his access to certain tools. Under these circumstances,there is no basis to conclude that Home Depot knew or should have known of the necessity andopportunity to exercise control over Mills's conduct. Accordingly, the court should have granted,in its entirety, Home Depot's motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it. Mastro, J.P., Covello, Eng and Leventhal, JJ., concur.