Summary
holding that hospital orderly's sexual assault of patient was outside the scope of employment
Summary of this case from A.W. v. N.Y. Dep't of Educ.Opinion
Decided June 3, 1999
Robert B. Nichols, for appellant.
Peter D. Braun, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Plaintiff alleges that a hospital employee sexually abused her while she was an inpatient at Sisters of Charity Hospital. In this action to recover compensatory and punitive damages, plaintiff seeks to hold the Hospital vicariously liable for the orderly's actions, and directly liable for its negligent hiring, retention and supervision of the employee. After the parties completed discovery, the Hospital moved for summary judgment. Supreme Court granted the motion, and the Appellate Division, over a two-Justice dissent, affirmed for the reasons stated by Supreme Court ( 249 A.D.2d 890). We agree with the courts below that plaintiff has failed to raise a triable issue of fact with respect to any of her claims against the Hospital.
The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment. 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 (Riviello v. Waldron, 47 N.Y.2d 297, 304). If, however, an employee "for purposes of his own 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" (Jones v. Weigand, 134 App. Div. 644, 645, quoted in Baker v. Allen Arnink Auto Renting Co., 231 N.Y. 8, 13). Assuming plaintiff's allegations of sexual abuse are true, it is clear that the employee here departed from his duties for solely personal motives unrelated to the furtherance of the Hospital's business (see, Mataxas v. North Shore Univ. Hosp., 211 A.D.2d 762, 763). Accordingly, the courts below properly dismissed plaintiff's respondeat superior cause of action.
As for plaintiff's negligence claim, the Hospital has met its burden of establishing that it acted with reasonable care in hiring, retaining and supervising the employee, and plaintiff has failed to tender any admissible evidence to the contrary. Instead, plaintiff has presented mere speculation and unsubstantiated allegations, which are insufficient to raise a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Finally, plaintiff has presented no evidence that the Hospital's management authorized, participated in, consented to or ratified the employee's alleged tortious conduct. Thus, the courts below properly dismissed plaintiff's claim for punitive damages (Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 378).
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Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.