The New York State Court of Appeals used a new analysis to determine whether an employer could be held liable for the actions of their employee in an assault and battery action under the doctrine of respondeat superior. The case of Rivera v. State of New York was commenced following an inmate’s lawsuit against New York State after suffering injuries following an alleged assault and battery by several correction officers. In finding that the state was not liable for the actions of their employee, the state’s highest court utilized what appeared to be a new test which is being referred to by practitioners as the “so egregious” test.
The action was commenced by Jose Rivera, an inmate in a New York State Department of Corrections and Community Supervision (DOCS) prison. One morning prior to entering the mess hall, a correction officer, Michael Wehby, mocked Rivera’s medically-issued protective helmet, which he was required to wear due to a seizure disorder. Rivera asked Wehby not to comment on the helmet fearing harassment from the other inmates. In response, Wehby asked Rivera to walk back to the doorway of the mess hall. When Rivera obliged, Wehby grabbed his jacket, pulled him outside of the mess hall, and began punching him in the face and head. Wehby then began stomping on Rivera when two other correction officers pushed Rivera to the ground and applied handcuffs. Wehby then removed Rivera’s helmet and continued the assault while yelling expletives and striking Rivera in the head with his radio.
Following the criminal process whereby Wehby pled guilty to official misconduct, Rivera sued the state of New York in the Court of Claims for common law assault and battery. Rivera claimed that the state was liable for the officers’ misconduct under the doctrine of respondeat superior. Rivera moved for summary judgment arguing that the officers acted within the scope of their employment because at the time of the assault, they “were on duty, in uniform, and supervising inmates” The state cross-moved for summary judgment arguing that “the unjustified and unauthorized use of force was a clear departure from DOCCS policies and procedures governing use of force.” The Court of Claims agreed with the state and dismissed the case. The Appellate Division and the Court of Appeals (4-3 majority) affirmed.
Under the theory of respondeat superior, an employer can be held liable for the actions of their employees 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 (1999). In determining whether actions rise to the level of the above standard, New York State Courts have commonly utilized a multiple factor test weighing factors such as the time, place and occasion for the act; the history of the relationship between the employer and employee; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated. Typically, New York courts have found actions to be outside of the scope only when the type of conduct has no conceivable relationship to the job.
In the case at bar, the Court of Appeals took a slightly different approach. The new approach taken by the Court was due mostly in part to the nature of the employment. The majority noted in their opinion that in prisons, force is part of the job. The opinion noted that “correction officers at times use excessive force. Such conduct will not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct. Under our multi-factored common-law test for determining respondeat superior liability, an employee’s deviation from directions or governing standards is only one consideration in the analysis.” Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979). Instead, the majority opinion found the State was not liable because “the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law.”
The question raised by the Rivera decision is whether this holding has brought about a “so egregious” test when dealing with certain occupations. If that is the case, the Court did not set forth a standard by which “egregious” can be measured. This can be seen through the Court’s further determination that the actions of the other two officers were found to be outside of their employment as well. Although their conduct was still distressing, it clearly did not rise to the level of Wehby’s conduct. Therefore, the boundaries of what is egregious is further muddied by the decision.
The dissent noted the above issue in that the majority failed to consider separately the actions of Wehby and of the other two officers. The dissent opined that there were material issues of fact as to whether the other two officers acted outside of the scope of their employment. The dissent went on to explain “the question is not whether they facilitated Wehby’s assault – they did – but whether the circumstances that triggered their actions, and their participation in the assault, might bring their acts within the scope of their employment.”
To read a full copy of the decision, click here.