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"
. On the adjacent campsite two tents were erected, one for the boys and one for
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
, 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
That evening Leslie, together with her friend Tammy, met Carisa at the
concession stand at 9:45 P.M.
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
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.
Within an hour, both young
women were feeling the effects of the alcohol as they danced on a picnic table
with their blouses removed.
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
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
Colwell returned to his office to be further briefed by
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
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
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.
Claimants rely on
Lundberg v State of New York
(25 NY2d 467 ) and Riviello v
(47 NY2d 297 ) 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).
), 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
), 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
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
, 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
), 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.
303). In other words, the negligent act, while not a specific duty of the
employee, was nevertheless "a natural incident of the employment" (id.
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.
, 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
, 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.
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 ; McEnaney v State of
, 267 AD2d 748 [3d Dept 1999]; Ruchalski v Schenectady County
, 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
Let judgment be entered accordingly.