New York State Court of Claims

New York State Court of Claims

XX v. THE STATE OF NEW YORK, #2002-032-510, Claim No. 101755


The State is not liable, under the doctrine of respondeat superior, for injuries suffered by a then-minor who was lawfully at a State campground and who was given alcohol by a Park employee and, allegedly, the victim of sexual harassment or misconduct on the part of an off-duty Park employee. The Park Supervisor's failure to prevent these actions as part of his responsible for Park security did not give rise to liability, because no special duty of protection was owed to the injured parties.

Case Information

LESLIE XX and BETTY YY Given the sensitive nature of the facts herein, the caption has been amended to give claimants fictitious names. The caption has been further amended to reflect the fact that Leslie is no longer an infant.
Claimant short name:
Footnote (claimant name) :
Given the sensitive nature of the facts herein, the caption has been amended to give claimants fictitious names. The caption has been further amended to reflect the fact that Leslie is no longer an infant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
The Mills Law Firm, LLPBy: Gregory S. Mills, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Joel L. Marmelstein, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 27, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

The issue presented by this claim is whether the State is liable for the acts of State employees of Coles Creek State Park who either purchased alcohol for minors, engaged in sexual intercourse with a fifteen-year-old patron of the Park, or supervised the employees who committed such acts. The Court holds that the State is not liable either under the theory of respondeat superior or for any failure to provide adequate security for park patrons.

In August of 1998, claimant Betty YY ("Betty") rented two adjacent campsites at Coles Creek State Park in Waddington, New York, for several days. Accompanying Betty on this trip were her boyfriend, his son, her three children – including her daughter Leslie YY ("Leslie") who was then 15 years old – and Leslie's friend "Tammy"[1]
. On the adjacent campsite two tents were erected, one for the boys and one for the girls.
While on this camping trip, Leslie typically spent the day at the beach and frequented a concession stand within the park. During these days, Leslie befriended Carisa Anne Weaver ("Carisa"), who was then 19 years old and worked at the concession stand. She was not a State employee. Leslie would purchase snacks at the concession stand, and the two young women enjoyed speaking with each other. Leslie also frequently walked around the park with her friend Tammy. During those walks, Leslie noticed "Phil"[2]
, an evening park maintenance employee. Carisa testified that Leslie told her she wanted to get to know Phil and that at one point, in order to help this happen, she fell off her bicycle in front of Phil so he would help her and drive her back to her campsite.
On August 11, 1998, Carisa invited Leslie to celebrate Phil's birthday with a group of friends, including Phil and another Park employee, Mark Johnson ("Mark"), a Park Ranger Assistant. Mark had obtained a permit for a campsite for several days, and Carisa and Phil had contributed to the rental fee. On this evening, Phil was not on duty but Mark was working between the hours of 5:45 P.M. and 1:00 A.M. (Exhibit L). Leslie told Carisa she would attend the party.

That evening Leslie, together with her friend Tammy, met Carisa at the concession stand at 9:45 P.M.[3]
They walked to the rented campsite where the birthday festivities were occurring. During their walk, Carisa testified, Leslie engaged in typical teenage talk with Carisa about Phil, wondering if he was a good kisser. However, Leslie also stated that she was a virgin and she wanted to remain that way. They arrived at the campsite at 10:00 P.M. but Leslie only stayed for five minutes since she had a 10:00 P.M. curfew. Leslie had told Carisa that she intended to ask permission to stay out later but if permission was not granted, she would meet Carisa at the bathroom at midnight. Carisa went to the bathroom at that time, but Leslie was not there. Carisa went back to the party. Leslie then arrived at the party at 12:30 A.M. at about the time that Mark was getting off from work and joining his friends at the campsite.
At 12:30 A.M. everyone was sitting around the bonfire, eating s'mores and drinking alcohol.[4]
According to the testimony of Carisa, whom the Court found to be credible, Leslie drank more than one beer and she also drank "Sour Apple Pucker" straight from the bottle.[5] Within an hour, both young women were feeling the effects of the alcohol as they danced on a picnic table with their blouses removed.[6] When the party started to break up around 2:30 A.M., Leslie joined Phil who was alone in his tent. Sometime later, Leslie and Phil engaged in sexual intercourse. Although the parties dispute whether this act was voluntary on Leslie's part, for reasons discussed below it is not necessary for that question to be decided in connection with this action. There is no dispute that she was fifteen years of age at the time.
On the morning of August 12, 1998, Betty awoke at 6:00 A.M. Missing her blow dryer, she went into Leslie's tent to see if Leslie had it. Tammy was alone in the tent. Based upon a conversation with Tammy, Betty thought that Leslie might be at a nearby campsite, and she got into her truck and drove there. There were two tents on this site, and her daughter's sneakers were outside one of the tents. Betty unzipped that tent and observed her daughter and Phil under a blanket. When she pulled back the blanket, she found them both to be naked. Betty then attempted to remove her daughter from the tent. According to Betty, Leslie appeared to be intoxicated. Her eyes were swollen and red; her speech was slurred; and she was physically unstable. She was also screaming at her mother. Betty put her daughter in her truck and immediately drove to the Park's registration office.

Upon arriving at the registration office, she informed the Park Supervisor, Roderick Colwell ("Colwell"), of what had happened. He then left the registration office to go to the campsite occupied by Mark and Phil. According to Betty, he fired the employees at that time and gave them one hour to leave.[7]
Colwell returned to his office to be further briefed by Betty.[8] At her request, Colwell called the State Police to report the incident and press charges.
State Trooper Mark Klosowski arrived at 10:00 A.M. to interview Betty and Leslie. At trial, he described Leslie as she looked that morning as disheveled, hung over, and a bit embarrassed. After speaking with Leslie and her mother, he directed them to go to Massena Memorial Hospital, which was equipped with rape kits. Trooper Klosowski did not interview Phil because he invoked his right to counsel and his attorney would not let him participate in a deposition.

Colwell testified at trial that Mark was a summer seasonal employee who had worked as a Park Ranger Assistant every summer since 1994. In 1998, Mark worked from 6 P.M. until 1:00 A.M., Tuesday through Saturday. Mark was working on August 11, 1998, and he was scheduled to work on August 12, 1998. Up until this point, Mark had never been the subject of a disciplinary hearing or any written or oral complaint. Performance evaluations for Mark made in 1994 noted that he had excellent work habits and good skills, and in 1996 it was again noted that he was excellent in both categories (Exhibit I). Although Mark was not Colwell's assistant, the Supervisor acknowledged that when he was absent, Mark would sometimes assume his responsibilities.

Colwell also stated that part of Mark's job description included providing security for the campsites. There was one Park Police officer on duty after 6:00 P.M., and he was responsible for Coles Creek and two other State parks, Robert Moses State Park, which was twenty minutes away, and Higley State Park, which was forty-five minutes away. On the evening of August 11, 1998, the Park Police officer was at Coles Creek State Park for a period of forty-five minutes. Except when this officer was present, Mark was in charge of security.

Phil began working at Coles Creek State Park on June 12, 1998. He was a late evening maintenance employee, working from 5:00 P.M. to 1:00 A.M., and his duties included cleaning the bathrooms, picking up garbage, sweeping roads and general maintenance. He worked a forty hour week, with Tuesdays and Wednesdays off. He had worked on August 10, 1998 and was not scheduled to work August 11
or August 12, 1998. Between June 12 and August 10, 1998, Phil was not a subject of any disciplinary hearings or any oral or written complaints.
At trial, Phil testified that he met Leslie several days before his birthday and that on August 9 or 10, 1998, he had helped her after she fell off her bike. On the night in question, he saw her for the first time when she arrived at the campsite around 12:30 A.M. By that time he had been drinking with the other youths since Mark had brought some liquor to the site at approximately 10:00 P.M. that evening. Around 2:00 A.M., as the party broke up, Phil and Leslie went into his tent and engaged in sexual intercourse. They fell asleep about 3:00 A.M. When Leslie's mother came to the tent later in the morning, he remained inside the tent when Leslie was taken away. On cross-examination, Phil stressed that he had not been on duty at the time of this incident, that he was just a regular patron who had rented a campsite for several days.
Applicable Law
Claimants rely on
Lundberg v State of New York (25 NY2d 467 [1969]) and Riviello v Waldron (47 NY2d 297 [1979]) to assert that the State is liable for breaching its duty to "prevent children lawfully on its campgrounds from injury secondary to intoxication" (Claimants' post-trial brief, p 5). The focus of the argument that the State is liable for claimants' injuries is directed to the conduct of the State's "supervisory personnel, its security personnel and the actual perpetrator himself" (Claimants' reply brief, p 1).
Lundberg (supra), the Court of Appeals held that "an employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities" and, consequently, that the doctrine of respondeat superior does not apply where injury is caused by an employee who is traveling to or from work, because the element of control is lacking (25 NY2d 467, 471). Riviello (supra), insofar as it is relevant here, stands for the proposition that under the doctrine of respondeat superior a master is vicariously liable for a tort committed by his servant while acting within the scope of his employment. Determining whether the acts complained of were performed within the scope of employment "depends largely on the facts and circumstances peculiar to each case" (Overton v Ebert, 180 AD2d 955 [3d Dept 1992], lv denied 80 NY2d 751). One of the useful guidelines in this regard, according to the Third Department, is the extent to which the employee's acts constituted a "departure from normal methods of performance" (id. at 956, quoting Riviello, supra, at 303). Other considerations highlighted by the Court of Appeals are the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; 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 (id.).
Riviello (supra), a tavern customer was injured when his eye was pierced by a knife being held by the bartender/cook on duty that evening. The knife had come to be in the employee's hand because, while socializing with the customer, conversation had turned to street crime and the knife was taken out by the bartender to show what he used for protection. The bartender's negligence with the knife was attributed to the employer because, while socializing with customers was not a task that the tavern owner had expressly directed the bartender to engage in, "there was evidence that the friendly relations which [the bartender] enjoyed with the majority of the pub's patrons and the expectation that these would be exploited to enhance the popularity of the pub" entered into the tavern owner's decision to hire this employee (id. at 303). In other words, the negligent act, while not a specific duty of the employee, was nevertheless "a natural incident of the employment" (id. at 304).
By way of contrast, in
Overton v Ebert (180 AD2d 955, supra), the Third Department held that respondeat superior was inapplicable where an employee, operating his own vehicle and driving to a nearby store to purchase snacks for his own consumption, became involved in an automobile accident. The employee was not carrying out any duty or assignment related to his work (handling stone and loading and unloading trucks), nor was his trip "incidental to the furtherance of [the employer's] interests" (id. at 956). The appellate court expressly rejected the argument that the doctrine of respondeat superior would apply "solely because an activity which benefits an employee personally could also have a possible benefit to the employer" (id. at 957). As the same court subsequently stated:
It is well settled that conduct which occurs during the course of employment will not be considered to have occurred within the scope of employment if, for purely personal reasons unrelated to the employer's interests, the employee engages in conduct which is a substantial departure from the normal methods of performing his duties.

(Gore v Kuhlman, 217 AD2d 890 [3d Dept 1995] [citations omitted] ).
Thus, respondeat superior has been held inapplicable where a therapist engaged in a sexual relationship with a patient referred to him by their mutual employer
(McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686 [3d Dept 2002]); where a hospital security guard raped a minor child who had come to the hospital to visit a patient ( Kirkman v Astoria Gen. Hosp., 204 AD2d 401 [2d Dept 1994], lv denied 84 NY2d 811); where a teacher sexually harassed students in the school where he was teaching (Mary KK v Jack LL, 203 AD2d 840, 841 [3d Dept 1994] [the employee's acts were "wholly personal in nature and certainly not done in the furtherance of the District's business"]); or where a mall security officer sexually assaulted a child in the mall security office (Heindel v Bowery Sav. Bank, 138 AD2d 787 [3d Dept 1988]). In Heindel, the Third Department explained succinctly that "there is no respondeat superior liability for torts committed by the employee for personal motives unrelated to the furtherance of the employer's business" (id. at 788).
The doctrine of respondeat superior, on which claimants rely, is wholly inapplicable in this case. Mark's actions in providing alcohol to minors, even if performed while he was on duty, was conduct that he engaged in strictly for his own personal reasons and conduct that was not directed toward furtherance of the State's business. This situation is no different from that presented in the cases referenced above in which an employee engaged in criminal or tortious activity while on duty, the injured party was someone who came in contact with the employee as a result of the employee's job, and the purpose of the employment was, in fact, to prevent harm to those on the premises.

Claimants' arguments that the actions of Colwell give rise to liability against the State are not based on the doctrine of respondeat superior but, rather, on his alleged failure to provide absolute security protection to those lawfully in the Park's campgrounds. It is well-established, however, that where the State acts in a dual capacity, as both a landowner and as the entity responsible for providing police protection, its function in providing security against physical injury by third parties is a governmental function for which there can be no liability unless it is proven that a "special duty of protection" was owed to the injured party
(Bonner v City of New York, 73 NY2d 930 [1989]; McEnaney v State of New York, 267 AD2d 748 [3d Dept 1999]; Ruchalski v Schenectady County Community College, 239 AD2d 687 [3d Dept 1997]). Here, claimants did not allege that Colwell or any other Park employee owed a "special duty" to Leslie, nor was there any proof from which such a duty could be inferred (see, Cuffy v City of New York, 69 NY2d 255, 260-261).
Claimants have failed to establish, by a preponderence of the credible evidence, that the State is liable for any injuries they suffered in August 1998, either through application of the doctrine of respondeat superior or on any other basis. The Chief Clerk is directed to enter judgment dismissing this claim.

Let judgment be entered accordingly.

February 27, 2003
Albany, New York

Judge of the Court of Claims

[1]To protect claimant's identity, Leslie's friend will be referred to by a fictitious name.
[2]Phil's last name is also being omitted (see footnote 1).
[3]Leslie testified at trial that on the evening of August 11, 1998, she ate dinner at the campsite with her family and then went for a walk in the park. She returned to the campsite at 9:30 P.M. for a bonfire with her family, and at 10:30 P.M. she retired to bed. She awoke at midnight from a stomachache and proceeded to the campsite where the party was occurring to get some Pepto-Bismol from Carisa. At her deposition, Leslie had testified that she went to the campsite where the party was occurring around 9:00 P.M. and remained there until the next morning. Due to such discrepancies in Leslie's testimonies, the Court credits the testimony of Carisa regarding the whereabouts of Leslie on the evening of August 11, 1998 and the early morning of August 12, 1998.
[4]According to depositions given to the State Police from minors who were at the campsite rented by Mark, Phil, and Carisa on August 9-11, 1998, Mark supplied alcohol to the minors on three evenings from August 9-11, 1998. (Exhibits Q, R, S, and T). Mark was not on duty August 9 or 10, but he was on duty on August 11. (Exhibit L).
[5]Leslie's testimony was in direct contrast with Carisa's as to the amount of alcohol that Leslie drank that night. Leslie testified at trial that she had a few sips of "Sour Apple" and "Fuzzy Navel" and immediately thereafter she felt very intoxicated. On cross-examination, Leslie acknowledged that she had testified at her deposition that she had quite a few shots of alcohol from a shot glass, at least three "Sour Apples," and two coolers that contained alcohol. Given Carisa's testimony, Leslie's testimony at trial on cross-examination and Leslie's testimony at her deposition, it is clear to the Court that she drank more than a few sips of "Sour Apple" and "Fuzzy Navel".
[6]At trial, Leslie did not recall dancing on the picnic table. However, Carisa and Phil testified that she did do so.
[7]Colwell testified that he did not fire Mark and Phil when he first spoke with them that morning. At his deposition, he stated that they were fired the morning of August 12, and it is clear from Exhibits M and E that they were separated from work service on August 12, 1998 and August 11, 1998, respectively.
[8]At trial, Betty testified that Colwell told her, "I have warned them before." Both at trial and at his deposition, Colwell did not recall making this statement to Betty. The Court reserved decision on whether this statement could be admitted as an exception to the hearsay rule as an admission or whether this statement was hearsay, a statement made by an employee outside the scope of his employment. The Court finds that the statement is too speculative to be considered an admission. Even if the Court were to permit the statement to be considered, there is nothing to give it meaning, to indicate what it was that Colwell had warned them about. The Court will not consider this statement in its determination, as conclusions based upon mere speculation or conjecture are without probative value (Mueller v Hannaford Bros. Co., 276 AD2d 819 [3d Dept 2000], quoting Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699 [3d Dept 1995]).