New York State Court of Claims

New York State Court of Claims

JABLONSKI v. THE STATE OF NEW YORK, #2001-028-0010, Claim No. 96587


Synopsis


In action for negligent hiring, retention and supervison, claimant failed to establish essential elements that employee had dangerous propensities and that employer knew or should have known of such propensities. Employer of seasonal, entry level custodial employees was under no duty to conduct background or criminal history checks on such employees. Claims dismissed.

Case Information

UID:
2001-028-0010
Claimant(s):
JOHN JABLONSKI and ANNE JABLONSKI
Claimant short name:
JABLONSKI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96587
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JOACHIM, FLANZIG, FROMMER, FLANZIG & CERRATOBY: Louis J. Cerrato, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: John Shields, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim seeks damages for injuries sustained by Claimant, John Jablonski (Jablonski or Claimant) on July 17, 1996 at Jones Beach State Park when he was allegedly attacked by five State employees outside a public rest room. Miguel Stewart, a seasonal employee, was identified as the principal protagonist. The claim alleges causes of action for negligence in the hiring, supervising and training of Stewart[1]
. Trial of this action was bifurcated, thus this decision addresses only the issue of liability.
Claimant testified that following his nine hour shift as a laborer, he drove to Jones Beach State Park to relax on the beach and to eat a picnic dinner with his family. He met his wife, three daughters, his in-laws and his parents at the beach at approximately 5:30 p.m. Claimant stayed on the beach for approximately three hours, during which time he consumed two cans of beer and had a basket of chicken with his family.

Just prior to leaving the park, Claimant walked to the men's bathroom located on the boardwalk. As he approached the bathroom, he saw five African-American males ranging in age from seventeen to twenty-two. He believed they were park employees based on his observation that they each wore a beige shirt with green pants and held either a broom or mop.

Claimant found the bathroom locked and therefore requested one of the individuals unlock the bathroom. Claimant entered, and while standing at the urinal, the lights were turned off and the door was locked from the outside. Claimant immediately looked over his shoulder and saw that he was alone. He tried to exit, but could not open the locked door. He banged on the door and yelled for someone to let him out of the bathroom. Through the vent in the bathroom door he observed two pair of sneakers. Claimant next sought to escape through windows located over the sinks. However, these windows were guarded with heavy wire mesh screening.

Claimant then returned to the door, and again banged and yelled for help. When he heard the dead bolt slide, Claimant testified he pushed against the door with his shoulder and hand. As the door swung open, one of the five males tripped over his own feet as he tried to back away from the door, landing approximately 8 to 10 feet from the door. Claimant testified that he walked in a non-threatening manner towards the young man who had fallen and asked him if he was alright. As he approached, Claimant said he heard another of the park employees say to him, "You dissed my bro ."[2]
The Claimant then said to the young man on the ground, "No big deal right?"
According to Claimant, he was then punched on the right side of his face and jaw by the worker whom he described as having "dreadlocks." Claimant went down on one knee and one hand. Once down, a number of these park employees began kicking and punching him. Claimant then went face down, with each of his hands up to the side of his head to protect his face during this one to two minute onslaught. Other than the man with the dreadlocks, Claimant was unable to state how many or which individuals attacked him.

After the assault ended, Claimant got up and returned to his family who had already packed their belongings and were approaching the boardwalk. Claimant, in an effort not to alarm his three young daughters, told his wife only that he had been hit in the mouth. He asked her to take the girls home in her car. Claimant did not call the police from Jones Beach. When he arrived at home at approximately 9:15 p.m., he drank "a couple of swigs" of scotch and three beers for his pain. While home, Claimant did not call the police. After remaining home for a short time, he went to the hospital for treatment. The police were finally notified the following day by one of Claimant's family members. Approximately one week after the assault occurred, Claimant appeared at Jones Beach in search of his attackers. He spotted Miguel Stewart, called the police and Stewart was arrested. No other individual was charged with this assault.

New York State Park Police Detective Darren McCarthy testified as to his investigation of this assault. This investigation included interviewing the suspects and Claimant. Miguel Stewart was identified as the prime suspect. McCarthy testified he obtained a "NYSPIN"[3]
printout regarding Stewart. From that document, McCarthy learned Stewart was placed on probation commencing November 16, 1995 and his probation was to expire in November 1998. In response to an inquiry from the Court, McCarthy stated he could not reach any conclusion as to the underlying offense from the printout or from the fact the probation was a period of three years. McCarthy also contacted the Nassau County Police Department to learn that two warrants, each dated May 28, 1996, had been recalled. Detective McCarthy testified that neither the NYSPIN printout, nor the information received from the Nassau County Police Department were available as public records.
On cross-examination, Detective McCarthy testified he did a background check on the employee/suspects and learned that there were no prior assaults or violent crimes in any of their backgrounds. His check revealed no evidence that Stewart had been involved in prior assaults on either park patrons or other employees.

Claimant read into the record portions of the deposition transcripts of New York State employees Jeffrey J. Mason (Mason) and Elizabeth Woodward (Woodward). Woodward, who occupied management titles at Jones Beach State Park between 1993 and 1997, testified generally about the hiring process for employees. These employees complete an application, an interview would be held and if an employee submitted references, they would be checked.[4]
Woodward further testified that it was not the practice and procedure to perform either background checks or criminal record checks. Mason, employed permanently since 1988, testified that he was familiar with the hiring practices of "zoneworkers" or "seasonal" employees at Jones Beach in 1996. It was established that Stewart was a seasonal employee. Mason's testimony briefly outlined the basic training which is provided to park employees. Training topics included such matters as how to deal with the public. On cross-examination, Mason acknowledged the training is ongoing. Mason testified the bulk of the staff, consisting of over 600 seasonal employees, are high school students.
It is well-settled that where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondeat superior and no claim lies against the employer for negligent hiring or retention (
see, Rossetti v Board of Education, 277 AD2 668, citing Eifert v Bush, 27 AD2d 950, affd 22 NY2d 681; Liddell v Slocum-Dickson Med. Group, P.C., 273 AD2d 924; Karoon v New York City Transit Auth., 241 AD2d 323, 324). Thus, the Court must first address whether the actions of Stewart fall within or outside the scope of his employment.
In determining whether the employee's acts are outside the scope of his employment the relevant test is "whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions"(
Riviello v Waldron, 47 NY2d 297, 302). More recently, the test has been articulated as follows: if 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 (Judith M. v Sisters of Charity Hospital, 93 NY2d 932, 933 [citations omitted] ). A review of the decisions pertaining to this issue reflect that assaults generally fall outside the scope of employment (see, Adams v New York City Transit Authority, 88 NY2d 116, 117, 120 [assault by token booth clerk on subway passenger undisputably outside scope of employment]; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [sexual abuse by a priest]; Ford v Gildin, 200 AD2d 224, 229 [sexual assault on tenant's daughter unrelated to employment as a porter in building]; Heindel v Bowery Savings Bank, 138 AD2d 787, 788 [security guard who forced child into mall security office and assaulted and raped child]; Detone v Bullit Courier Service, Inc., 140 AD2d 278, 279 [jury verdict of no respondeat superior liability where employee messenger engaged in fight with pedestrian]).
Crediting Claimant's testimony that Stewart threw the first punch, it is evident that Stewart departed from his duties for personal reasons wholly unrelated to the Defendant's business and that engaging in a fight was clearly outside the scope of his duties. Accordingly, the Court now turns to analyze the negligence causes of action flowing from Stewart's employment by the State of New York.

An employer in New York State may be held liable for negligent hiring by exposing foreseeable victims to employees whom the employer knew or should have known had violent propensities. As such,
a necessary element of such causes of action is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see, e.g., Kenneth R. v Roman Catholic Diocese, 229 A.D.2d 159, supra; Gallo v Dugan, 228 AD2d 376; Mataxas v North Shore Univ. Hosp., 211 AD2d 762; Detone v Bullit Courier Serv., 140 AD2d 278, supra. The common-law does not recognize a duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee.[5] (Buck v Zwelling, 272 AD2d 895, 896; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d at 163, supra). Similarly, an employer may be held liable for negligent retention or supervision if it acquired actual or constructive knowledge of its employee's propensity for the conduct which caused the injury. (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161, supra).[6]
Claimant is required to prove both that Stewart had violence in his past and that the defendant knew or should have known of this past (
Gallo v Dugan, 228 AD2d 376, supra). Since Stewart was serving a term of probation at the time he was hired, Claimant desires the Court to find that he had either a violent past or violent propensities. However, since Stewart's NYSPIN report merely related a term of probation without reference to the underlying crime for which he was sentenced, and further, since Detective McCarthy's background check revealed no prior history of violence, the Court is left to speculate about Stewart's past. Absent other evidence, the Court has no basis from which to draw an inference that Stewart had violence in his past.[7] Likewise, and assuming arguendo there was violence in Stewart's past, the Claimant failed to establish any basis upon which defendant should have known of that fact (compare, Haddock v City of New York, 75 NY2d 478, 485 [City failed to act on criminal history information it received, pursuant to its employment practices, months after hiring employee]). Nor did Claimant establish any evidence that there was a need for heightened scrutiny (Corbally v Sikras Realty Co., 161 AD2d 107, 108 [presence of Nazi memorabilia and numerous complaints about the employee's rude, uncooperative and at times scary behavior, among other factors, raised a question for the trier of fact concerning the hiring of this employee without benefit of the most routine check of references]). On this record, the employer was entitled to rely on Stewart's representation on the application form (Exhibit 11) that he "had never been convicted of a violation of the law." Furthermore, on these facts, the Court finds unpersuasive Claimant's contention that the Defendant as employer has a duty to conduct criminal history or background checks on every employee it hires, including entry level, seasonal, custodial positions, such as held by Stewart at the time of this incident.
Accordingly, the claim is dismissed in its entirety.[8]

LET JUDGMENT BE ENTERED ACCORDINGLY.


April 10, 2001
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The derivative claim of Anne Jablonski, the wife of John Jablonski, was withdrawn prior to the commencement of the trial of this claim.
[2] All quotations are to the trial notes or audiotapes unless otherwise indicated.
[3] New York State Police Information Network. This network is a State maintained computer record of an individual's criminal history.
[4] The application form completed by Stewart (Exhibit 11) did not ask for references. A space is provided for "APPLICANT REMARKS". Stewart provided no additional information.
[5] The facts at bar do not present any of the situations which require an employer statutorily to perform a background check (See, e.g., Social Services Law § 390-b [child care providers]; Education Law § 3004-b [Effective July 1, 2001] [superintendent of schools, teacher, administrator or supervisor, teaching assistant or school personnel required to hold a teaching or administrative license or certificate]; General Business Law§ 89-g [security guards]; General Business Law § 89-rrr [armored car guards]; Vehicle & Traffic Law § 509-d [bus drivers]).
[6] Although Claimant alleged a claim sounding in negligent training, the only evidence of training, which was elicited from Mason, was vague and insufficient evidence to demonstrate that the employee's negligent training led to the incident in question (see, Barr v County of Albany, 50 NY2d 247, 257-258; Richardson v New York Univ., 202 AD2d 295, 296-297). Claimant focused both the trial presentation and post trial submission on the negligent hiring cause of action.
[7]Whether Stewart had been afforded "Youthful Offender" treatment was also left unanswered (see, Criminal Procedure Law §720.10, et. seq.) as the NYSPIN report was silent in this regard. The three year period of probation is significant in that it indicates misdemeanor probation (see, Penal Law §65). Given that Stewart was less than 19 years old at the time of this prior misdemeanor offense and had no other criminal record, Youth Offender treatment was mandatory (see, Criminal Procedure Law §720.20(1)(b)). An employer would be required to obtain a Court Order to unseal the records regarding this prior probation matter. In any event, from a review of the NYSPIN report, there is no indication of whether the offense for which Stewart received a period of probation was for a violent or non-violent act.
[8] All motions upon which decisions were reserved and not disposed of herein, are hereby denied.