New York State Court of Claims

New York State Court of Claims

WEST v. THE STATE OF NEW YORK, #2005-030-017, Claim No. 93369


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

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Signature date:
June 21, 2005
White Plains

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See also (multicaptioned case)


Yolanda West alleges in Claim Number 93369, as supplemented, that the Defendant is vicariously liable for an assault upon her on March 8, 1995 by Richard Payne, a Department of Transportation (hereafter DOT) employee, and is also liable for the negligent retention of that employee. Trial of this bifurcated action was held November 22 and 23, 2004. This decision relates only to the issue of liability.
Findings of Fact
testified concerning the events of March 8, 1995. She said she was driving on Route 300 with her two-year-old daughter in the backseat of her station wagon, when she first observed a bright yellow DOT truck. She pulled out to pass it on the truck's left, pulling back into the driving lane to proceed with traffic. She could not say whether she passed the truck in a zone allowing passing, but pass it she did. Thereafter, the driver of the truck drove up along the left side of her vehicle in a no passing zone, turning his truck to the right toward her car, running Claimant off the road. She pulled off the road to avoid being hit, and then decided to follow him because she wanted to get some identifying information. She was also angry. As she followed, she observed him driving "recklessly," which she defined as "too fast."[2] She estimated he was driving between 40 to 50 miles per hour in a 35 mile-per-hour zone.
As the DOT truck left Route 300 and turned into a residential neighborhood by "some railroad tracks," Claimant continued to follow. She saw the truck "speeding" through the residential area and then turning into a Shop Rite shopping plaza in New Windsor. Since there was no plate on the truck, she explained, she was following it in order to "confront [the driver] about his driving." Once she entered the shopping plaza parking lot, she saw the DOT truck parked, and stopped her car about 20 feet away from the truck. Both she and the driver got out of their respective vehicles, berating one another. Mrs. West admitted to shouting and screaming at the driver that he had almost caused her to have an accident, as well as voicing her concern that her daughter might have been hurt. The driver, too, was shouting back, saying "what's the matter with you" and "words to that effect." When she told him that she was going to report him, he remarked "go ahead, whatever."

After this exchange, the driver got back in the truck and pulled out very fast, and Claimant went back to her car and continued to follow him, still trying to get identifying information. At this point, she had determined that it was a DOT truck, but she was unable to see a plate.

The truck came to a stop again in front of "the T-bank", and she stopped her car close by. She had obtained a piece of paper and a pen, and walked out of her car to within approximately ten (10) feet of the truck. She wrote down the numbers, and proceeded back to her car. It was then that she saw the driver get back in the truck - she recalled that he had not been in view when she was writing - and accelerate the truck toward Claimant. She knew it was accelerating because she saw the truck "lift up in the front", coming toward her as if to run her over, she thought, and then it "stopped suddenly" within 10 to 15 feet of her car. The driver then "jumped out, and grabbed [her] by both wrists, and tried to take away the paper she had written on and the pen." She said that as he held on to her left arm, she tried to get away from him by wriggling out of her coat. Her pen snapped during the struggle, and he then let her go and ran back to his truck. She estimated that the physical contact with the driver lasted approximately one minute. After he went back to the truck, a "gentleman" in another truck asked her if she "wanted to call the police". She remembered a woman she later learned was named Patricia Ruger inquiring after her well-being, and trying to quiet Claimant's daughter who was "hysterical at that point."

After the incident, she learned that the driver of the DOT truck was named Richard Payne.

On cross-examination, Claimant confirmed that Mr. Payne's attack on her was unprovoked and violent. She estimated that approximately 10 minutes elapsed between the time she first passed the DOT vehicle and the time of the attack in the parking lot. Although she would not say that he was "out of control" as suggested by Defendant, Claimant said that Mr. Payne was clearly angry, but "knew exactly what he was doing." He had "the mission of getting that piece of paper out of my hand so that I couldn't report him."

She confirmed that another employee was in the truck when they had the verbal altercation, but was not sure where the other employee was when the physical attack occurred.

Patricia Ruger was returning to the Shop Rite plaza in New Windsor, New York, after a floral delivery on March 8, 1995, when she saw a man driving a "bright yellow" DOT vehicle move next to a parked car. Her testimony essentially confirmed that of Mrs. West. She agreed that Richard Payne, the driver of the truck, could be described as "violently" attacking Claimant.

Richard Payne began his employment with DOT in 1984, in the job title of laborer. [Exhibits E and H, p 594]. At some point thereafter he was appointed to highway equipment operator, because that was his job title in August 1987, when he apparently was "AWOL" for a period of eight hours, and was warned about the consequences for unauthorized leave, including disciplinary proceedings. [Exhibit 45].

In September 1987 he had two accidents in one day while driving a DOT dump truck. [
See Exhibits 46 - 56]. On the morning of September 24, 1987 he backed up a dump truck with the dump body in an upright position, either failed to hear or heed the warnings of coworkers, and backed the raised dump body into electrical service wires lining a village street, pulling out the wires in the process. [Exhibits 46, 47, 50-56]. In the afternoon of September 24, 1987, Mr. Payne again left the dump box in a raised position as he backed the truck into the overhead doors of a DOT garage. [Exhibits 48-49, 51, 55, 56]. In a Notice of Discipline (hereafter NOD) served concerning these events, the penalty proposed was dismissal. [Exhibit 55]. The disciplinary proceeding was settled pursuant to a document dated December 3, 1987, and appears to have resulted in the payment of a fine by payroll deduction. [Exhibit 56].
On March 29, 1988 Mr. Payne was sent a memorandum demoting him from highway equipment operator - which had been an appointment still subject to probation at the time - to laborer, effective April 14, 1988, because in addition to the September 1987 accidents, he had been reported as speeding in an unsafe manner through a maintenance work zone set up on Interstate 84 on March 23, 1988. [
See Exhibit 58].
Commencing in November 1988, he was again appointed to the position of highway equipment operator. His year-long probation for that appointment is documented in a series of probationary reports completed by various supervisors, including two who testified, Joseph Van De Mark and Alan Woodruff.

Joseph K. Van De Mark, an employee of the DOT from May 1970 to April 20, 1994, whose job included supervisory duties from approximately 1974 to his retirement in 1994, testified. Overall, he supervised 36 equipment operators, truck drivers, laborers and maintenance workers. Evaluation responsibilities were shared by other supervisors as well.

Mr. Van De Mark was Mr. Payne's immediate supervisor for "about three (3) years," and recalled him well, dealing with him on a day-to-day basis. He stated that overall throughout the period he supervised Mr. Payne he was an "unsatisfactory" employee. Mr. Van De Mark explained that Mr. Payne's work habits were poor, he was "reckless, disrespectful to fellow workers; [his] driving habits were too rapid, too fast; inconsiderate of the motoring public doing certain jobs; didn't care. He was the only person on the road and everyone else could move out of the way." Having "a conversation with him was . . . there was no way to have a conversation with him; he was incoherent." During work hours, he detected the odor of alcohol on Mr. Payne's breath, and noted that Mr. Payne did "not stick to the subject in conversation", and "would not listen to instruction," preferring to "do things his way."

Mr. Van De Mark did not have hiring or firing power over Mr. Payne, and could only make recommendations as memorialized in the probationary reports and performance evaluations. He recalled recommending that Mr. Payne "not be retained" in "progress reports," although this suggestion does not appear in any writing that this Court reviewed. [
See generally Exhibit H]. Mr. Van De Mark indicated that he "did not have the qualifications to check into Mr. Payne's driving record" and assumed that it would have been checked by someone "higher up, since . . . [he] couldn't do it."
In a February 1989 probationary report relative to the highway equipment operator position, Mr. Van De Mark wrote of Mr. Payne that he "does not pay attention to fello[w] workers around him, can be dangerous." [Exhibit 32]. When asked to expand upon the comment, Mr. Van De Mark remembered "a couple of" incidents. In one case, when Mr. Payne was assigned a painting job with other employees, he took a position physically above the others, and deliberately sprayed paint in his fellow employees' faces and eyes. On another occasion, Mr. Payne moved a vehicle into position to be serviced by a paint crew, but wouldn't wait until others put on their safety equipment, but would start chipping paint, and the "chips would fly." Mr. Van De Mark had to remove chips "out of two employees" due to Mr. Payne's disregard.

In an August 1989 probationary report Mr. Van De Mark wrote in a section concerning "Relationships With Other People" that "[a]t times there appears to be friction between them." [Exhibit 33]. Mr. Van De Mark explained that he meant that in Mr. Payne's view, nothing any other workers did was right, and only Mr. Payne's approach was correct.

Although Mr. Van De Mark was Mr. Payne's supervisor in January 1990, he was on vacation when Mr. Payne broke into an abandoned car at Route 218, removed an alternator from it, and then worked on the part at the DOT yard. [
See Exhibit 61]. Hearing about the incident after the fact, Mr. Van De Mark reported it [Exhibit 60]. The incident became the subject of a disciplinary proceeding resulting in Mr. Payne's second demotion to laborer. The NOD concerning the event, dated March 5, 1990, proposes termination of employment as a penalty, and includes two allegations of misconduct. [See Exhibits 62, and H, pp 39-40]. A previous misconduct resulting in a fine is noted as having occurred on October 23, 1987. [id.]. The disciplinary proceeding resulted in a settlement document dated August 1990, in which Mr. Payne became ineligible for promotion from his position of laborer for a two (2) year period; and Mr. Payne agreed to submit to testing for alcohol or substance abuse and treatment for same if he should test positive. [Exhibit 65]. Later testimony revealed there had been no follow-up concerning the submission for substance or alcohol abuse testing.
On cross-examination, Mr. Van De Mark indicated that he was not "copied" on any of the disciplinary proceedings concerning the January 1990 removal of the alternator. He confirmed that in a November 1989 probationary report marked "final" Mr. Van De Mark had written that the employee "needs improvement," and made the suggestions for how Mr. Payne's performance could be improved. [Exhibit 34]. He explained, however, that it was one of his superiors - perhaps Mr. Woodruff, he couldn't say - who checked the box indicating the recommendation that the employee be "retained." [
Allen Woodruff, a Highway Maintenance Supervisor for the DOT, testified concerning his role in supervising Richard Payne - through intermediaries such as Mr. Van De Mark for the most part - although there was some direct supervision as well. He explained the differences between evaluation and probationary reports, saying that a probationary report is one generated for an employee who has been newly hired or newly promoted and who is thus required to be evaluated periodically for a set period of time, whereas evaluations are done yearly for every employee, and give the employee an "idea of what's expected of them" and how they are meeting expectations. He responded that a comment in a probationary report to the effect that the employee has difficulty working with others might be considered a negative comment, "to some degree." He said he did not have the authority to hire or fire Mr. Payne.

As noted, Mr. Payne was appointed to the position of heavy equipment operator in November 1988, a position requiring an individual who could "operate dangerous equipment safely", Mr. Woodruff stated. The employee would need a driver's license.

Mr. Woodruff said that between November 1988 to August 1989, there was no system in place for determining whether an employee was using alcoholic beverages or controlled substances, except "by observation." There was no procedure in place for that period to re-examine the driving record of drivers to Mr. Woodruff's knowledge.

Mr. Woodruff reviewed a series of probationary reports, covering a period from November 1988 to September 1993 concerning Mr. Payne, which he had signed either as an immediate supervisor or as a reviewing supervisor. [Exhibits 32, 33, 34, 39, 40, 41]. He also reviewed several evaluation forms that he had signed in one capacity or another for the same period. [Exhibits 35, 38, 39, 40, 41]. For the most part, these forms offer a series of options for the evaluator to check off in categories entitled "Quantity [of work], Quality [of work], Dependability, Ability to Learn, Relationships, Attendance and Punctuality," as well as narrative portions. He "signed off" on many of the probationary reports and evaluations written by Mr. Van De Mark.

In the November 1989 probationary report marked "final" report, Mr. Van De Mark wrote negative comments concerning Mr. Payne's inattention, relationships with people - including the public as Mr. Woodruff understood it - and noted Mr. Payne's reluctance to "pay more attention to the job and the people working around and with him." [Exhibit 34]. There are also positive comments concerning operating equipment, attendance and punctuality, and ability to complete job assignments. [
In an annual performance evaluation form dated April 1990, Mr. Payne is described as needing improvement in similar areas. [Exhibit 35]. The form notes that Mr. Payne "needs to improve his driving habits, and cannot work without constant supervision. Lacks consideration for his fellow workers, also lacks safety awareness."
[id.]. It is also noted that he should "[h]ave more consideration of the motoring public and the equipment he is driving" when sanding; should "pay more attention to the people on the ground and flow direction during operation," and "[d]oes not follow safety policies . . . [d]oes not have consideration for the work force that he is assigned to or while he is operating equipment, or doing manual labor." [id.].
A report for the period from July 26, 1991 to July 25, 1992 - the annual evaluation while Mr. Payne was in the job title of laborer after his second demotion - completed by a different supervisor, shows improvement. [Exhibit 38]. The evaluation does state, however, that Mr. Payne "[s]hould be more courteous to the traveling public."[
id.]. The supervisor indicated that Mr. Payne ". . . is a willing worker who is not afraid to jump in and give a fellow employee a helping hand. He is always available for overtime. Also willing to operate equipment if needed." [id.].
In a probationary report covering a period from September 24, 1992 to March 25, 1993, and noting a probationary period until September 23, 1993, Mr. Payne is again listed in the job title of highway equipment operator. [Exhibit 39]. For the first time, Mr. Payne's overall performance is deemed "satisfactory" by Mr. Van De Mark, although in the section on work habits - which "need improvement" - it is noted "[w]ork habits are good at times, has to slow down and pay attention to workers around him . . . " [
In June 1993, another probationary report gives Mr. Payne a satisfactory rating, and was completed by Mr. Woodruff. [Exhibit 40]. Mr. Woodruff noted that Mr. Payne "[n]eeds to slow down some and think before some things he does" in terms of safety; "[g]ets along with everyone" in terms of relationships with people; and "[g]ets along with supervisors but could listen a little more and talk less." [
id.]. Mr. Woodruff also explained that he would take on the role of "rater", rather than "reviewer" when the employee worked under several supervisors - in which case he would talk to the supervisors about the employee and rate the employee accordingly - or if he himself had personal knowledge of the employee's work habits.
Mr. Woodruff also completed the final probationary report for the highway equipment operator position in September 1993, finding Mr. Payne's overall performance "satisfactory", and recommending that he be retained as an employee. [Exhibit 41]. The exhortation that Mr. Payne "slow down" with regard to work habits, safety, and equipment operation is continued in this report, however, as is the notation that Mr. Payne should listen more and talk less with regard to supervision. [
In October 1994, Mr. Payne was advised that he would be required to furnish medical documentation for sick leave based upon a review of his attendance record evidencing possible misuse of sick leave. [Exhibit 74]. The memorandum indicates Mr. Payne was counseled previously on the issue. [
id.; See Exhibit 71].
Then, on February 9, 1995, two counseling memoranda were directed to Mr. Payne, from the Resident Engineer, Peter Teliska. [Exhibits 75 and 76]. Mr. Payne was advised in one memorandum that his supervisors had received reports that one of the snowplows was driven at an excessive rate of speed, and that it was determined that Mr. Payne was the likely driver given that it was his "beat", and that Mr. Woodruff had warned Mr. Payne about excessive speed previously. [Exhibit 75].

The second memorandum said that on February 7, 1995, Mr. Woodruff found Mr. Payne sleeping in an idling truck in the Newburgh yard, and directed that he not sleep while at work, that "it is against the law to idle a diesel-fueled vehicle for more than five minutes when not performing work related tasks . . .", and that "when told to do something by a supervisor you are to respond in a positive manner." [Exhibit 76].

Within a month, the incident that is the subject of this claim occurred. Mr. Woodruff testified that on March 8, 1995 Mr. Payne and Charles Jackson were assigned to work on installing a hopper on a large dump truck. He said that they had installed the hopper in the morning, and took the truck for a ride in order to get it "seated", and then tighten it if necessary. Later in the morning, Mr. Woodruff learned that the New Windsor Police Department was "looking for a State truck." When Mr. Payne and Mr. Jackson returned to the yard, Mr. Woodruff asked them if "anything happened" while they were on the road, given that the police were looking for a State truck. In a contemporaneous written statement by Mr. Woodruff, dated March 9, 1995, that is part of Mr. Payne's personnel file, Mr. Woodruff described the incident concerning Mr. Payne and the Claimant, including the report by Mr. Jackson that Mr. Payne "was a wildman." [Exhibit 92].

On cross-examination, Mr. Woodruff explained that when "signing off" on an immediate supervisor's rating of an employee, he would be using his best judgment - as would the supervisor - concerning the employee overall. He reviewed the probation reports from 1989, and agreed that they reflect negative and positive comments, and evidence the determination based upon the best judgment of the evaluators that Mr. Payne be continued on the original probationary status set forth in the documents, and not terminated. [
See e.g. Exhibits 32, 33, 34]. In the laborer job title, he is evaluated as an "effective" employee. [Exhibit 38]. Decisions to retain Mr. Payne on probationary status were explained because there was a substantial period of probation remaining when some of the reports were written. [Exhibits 39, 40, 41]. During the entire time Mr. Woodruff had been responsible - although not always directly responsible - for the supervision of Mr. Payne, until the March 8, 1995 incident, Mr. Woodruff was never informed of any altercations between Mr. Payne and the public.
Peter Teliska, currently in the job title of Regional Transportation Maintenance Engineer, and a 21-year employee of the DOT, also testified. At the Newburgh facility, he became the Resident Engineer in March 1994. His duties included overseeing the operation and maintaining the safe highway system, utilizing available resources including the DOT's own workforce, or a workforce provided by contract, resolving public concerns and generally assuring safe roads.
Mr. Teliska had hiring capability, but did not have the authority to fire anyone. In order to terminate an unsatisfactory employee, procedures had to be followed. As an initial matter, supervisors would try to correct the unsatisfactory behavior, and make the personnel office aware of the behavior. Then the personnel department would take the appropriate steps "whether it is a disciplinary action or termination." He did not recall whether there was a procedure in place in or before March 1995 to determine whether an employee had alcohol or substance abuse problems. There was, however, a voluntary employee assistance program in place.

Individual employee
behavior that would come to the attention of the Resident Engineer generally as part of his duty to evaluate employees - as characterized by the Claimant's attorney - included irrational conduct and violation of rules. Only if an employee's driver's license was suspended, however, would motor vehicle violations generally come to the attention of the Resident Engineer. In the fall, prior to "snowplow season", employees would bring in their drivers' licences and copies would be made. The witness was not aware of any other annual procedure in place for checking the driving record of those employees whose job duties included driving.
Mr. Teliska could not recall "specifically" when or how Richard Payne first came to his attention. Shown Exhibit 71, a memorandum he had written to Mr. Payne dated April 22, 1994 concerning "time and attendance," Mr. Teliska recognized the memorandum he'd written. He explained that the DOT monitors sick-leave usage on a six-month schedule, and whenever an employee uses more than nine days of sick leave in a given year, an investigation into the reasons for the utilization of sick leave is commenced. He could not say that there was a particular rule to the effect that using more than nine (9) days of sick leave was not allowed; however, "informally", this was a "target date." He said that in evaluating an employee, overuse of sick time was a "potential" negative factor.

Mr. Teliska identified an evaluation form he had signed concerning Richard Payne on March 13, 1995, covering a period from February 17, 1994 through February 6, 1995. [Exhibit 42]. The form indicates that Mr. Payne was deemed an "unsatisfactory" employee overall - meaning he "does not meet performance expectations for one or more tasks, not even at a minimally acceptable level" - and more specifically notes that Mr. Payne has a "good knowledge [concerning operating dump truck with plow, wing and sander] . . . but travels way to[o] fast while doing the job and has little regard for people's property . . . "
[id.]. Under the "Supervisor's Comments" written by Mr. Woodruff, it states "Richard is a good worker, who seems to have many problems getting along with everyone at times. He uses his accruals up as fast as he gets them and does some things that could result in bad accidents." [id.].
Mr. Teliska said a copy of such a report goes to the personnel office, but he did not know if such a report would be accompanied by recommendations for further action, or if indeed any further action would be taken. Mr. Teliska said that the policies for handling an unsatisfactory employee are governed by the contract between the CSEA union and the DOT, and it was these policies that were in place up to and including March 1995.

After reviewing the first counseling memorandum Mr. Teliska wrote to Mr. Payne dated February 9, 1995, referred to above, in which Mr. Payne is warned "If there is not immediate improvement in your operation of . . . [snowplows at an excessive rate of speed], formal cha[r]ges will be brought against you," Mr. Teliska said that he "did not recall" whether formal charges concerning Mr. Payne's operation of a snowplow were ever brought, explaining that "this was 9½ years ago."

When reviewing the second counseling memorandum directed to Mr. Payne dated February 9, 1995 [Exhibit 76]
in which he is told he should not sleep at work among other things, Mr. Teliska said that despite the fact that this memorandum, too, warns of "formal charges," it concerns different behavior, and together the two memoranda do not necessarily create the basis for a formal charge. At least this was his understanding from the personnel office.
During the time Mr. Teliska supervised Mr. Payne, he had no personal knowledge that Mr. Payne consumed alcohol or used illegal drugs on the job, nor did he know if he was "a drunk". Mr. Teliska did not recall reviewing any records from the New York State Department of Motor Vehicles (hereafter DMV) of Mr. Payne's operating record, nor was he aware of any standards necessitating such review of those DOT employees operating DOT vehicles, other than the requirement that the drivers possess a valid driver's license. Mr. Teliska said that it was "within our state policies" to retain as a driver five years after the fact an employee with, hypothetically, a driving record like the one memorialized in Mr. Payne's driver's abstract from the DMV covering the period from 1987 to June 14, 1990. [Exhibit 64]. The driver's abstract shows convictions for speeding, insufficient turn signal, going through a red light, and leaving the scene of an accident - although the latter conviction appears to have been reversed.
[id.]. One license suspension, and issuance of a restricted license is also memorialized. [id.].
Mr. Teliska said "there is a set progressive policy that we are to follow when correcting an employee's behavior." It progresses from "verbal counseling, to written counseling, then the possibility of a notice of discipline, and then the discipline gets progressive to hopefully correct the employee's behavior."

On cross-examination, Mr. Teliska confirmed that subsequent to the two February 9, 1995, counseling memoranda and before March 8, 1995, he was unaware of any further incidents of Mr. Payne either driving his truck in an unsafe manner including speeding, or sleeping on the job. Additionally, Mr. Teliska was unaware of any incident involving Mr. Payne assaulting fellow employees or any member of the public except for the attack on Claimant. After the incident, Mr. Payne was suspended without pay, [Exhibits 25 and H], and ultimately terminated from employment on August 25, 1995. [
See Exhibit 14].
Jerome J. Thomas, Director of Highway Maintenance Division for the DOT in 1987, and an employee since 1958, was the last witness to testify on Claimant's direct case. His duties as Director involved management, engineering, and the overview of the various maintenance programs conducted by the regions statewide. Part of the management duties included preparing budgets and staffing requirements, as well as monitoring some personnel behavior, although he did not get involved in the "day-to-day personnel responsibilities."

Mr. Thomas was the recipient of a memorandum from Dan Mencucci, the Director of Employee Safety, dated September 29, 1987, describing the "unreasonable" behavior of an unnamed employee from the Newburgh residency. [Exhibit 51]. It reports the employee backed his truck into electric power lines and later drove into the garage with the dump truck box raised, causing the raised box to strike the building over the door opening.
[id.]. Mr. Thomas identified a note he wrote to Joe Gleeson, the Regional Highway Maintenance Engineer for Region 8, indicating his view that the employee "should be examined for his sake as well as for the sake of the public and the other employees. What is his accident record like with DMV, or with Employee Safety. I assume you have already grounded him until these concerns are resolved. Please memo me on the outcome." [id.]. There is no indication in Mr. Payne's personnel file - for it is Mr. Payne who was the employee involved - that there was any follow-up regarding Mr. Thomas' concerns. [Exhibit H].
Raymond Cooke, an employee of the DOT since 1979, and the only witness called by the Defendant, also testified. He is the labor relations representative in the employee relations bureau of the DOT, and has been performing his job functions since 1995. His job entails handling disciplinary cases, contract and non-contract grievance cases, presenting cases involving improper practice charges at administrative hearings, negotiating settlements, presenting cases at arbitration if necessary, and advising managers and employees of contractual interpretations.

Mr. Cooke was familiar with Exhibit H - Mr. Payne's personnel folder- as well as Exhibit 43, a typewritten summary of parts of Mr. Payne's employment history. He explained the NOD procedure. He said that generally the Regional Personnel Officer issues the NOD. The receiving employee has two choices: he can accept the penalty or he can file a disciplinary grievance. If the latter course is taken, attempts are made to resolve it between the parties, the union - assuming the employee has secured union representation, "which is 99% of the time" - and the employer. If the matter is not settled, it is set down for arbitration by an impartial arbitrator. Thus with respect to the NOD issued to Mr. Payne in October 1987 when he was working as a highway equipment operator and drove his dump truck into high tension wires, it was settled by the parties. Mr. Payne was fined $200.00; he participated in a driver improvement program; and he was restricted to driving in the yard. At the time of the incident, he was in probationary status as a highway equipment operator, and was returned back to laborer. Mr. Cooke said that the return to position of laborer would not be a part of the disciplinary settlement, but rather a reflection that an incident had occurred that warranted a change in his probationary status. Mr. Cooke explained that an option at the end of a probationary period is to find the performance unsatisfactory, and return the employee to his prior position, assuming it had been held. Mr. Cooke further explained that the judgment of immediate supervisors is relied on to a great degree when the DOT decides to retain employees.

Throughout Mr. Payne's personnel file, Mr. Cooke observed various recertifications for operating various items of equipment, including recertification for "one person plowing" for a period from October 1, 1993 to October 28, 1994. In October 1994 the job titles of laborer, highway equipment operator and construction equipment operator were combined and reclassified, thus Mr. Payne's status changed to "Highway Maintenance Worker I" on October 20, 1994. Qualifications for Highway Maintenance Worker I included possession of a valid Class B commercial driver's license, allowing operation of vehicles in excess of 26,000 pounds. [
See Exhibits 88 and D]. Minimum qualifications for the prior job title of highway equipment operator in contrast included one year of experience in the operation of tractors, or other self-propelled equipment, possession of a valid New York State driver's license "appropriate to the type of vehicles operated" which would mean a Class B commercial driver's license. [Exhibit 89]. He noted that the contract with the union requires that positions in higher grades that are to be filled are filled by the most senior qualified individual bidding for the job. Going from laborer to highway equipment operator, the Resident Engineer would likely decide on hiring the successful bidder after consulting with the Supervisor II. Personnel would review the records to assure minimum requirements were met - i.e. the license - but "that was about it."
The classification standard for the position of laborer indicates no educational or experience requirements, except physical ability to perform heavy physical labor. [Exhibit A] . Employee health service would give the potential employee an exam and certify that he was in shape. All the job descriptions include interaction with the public to some degree, either literally or by implication.

Mr. Cooke described the New York State policy of "progressive discipline" when it comes to its employees. Thus the first attempts to correct employee behavior would be verbal, followed up by written counseling placed in the employee's file, and finally formal discipline would be instituted for repeated offenses of the same nature. Some behavior rises to the level of formal discipline right away by its nature, but most issues are dealt with in this progressive fashion. A "misconduct" must be charged to commence discipline. Mr. Cooke explained that "official misconduct" would be violation of a rule or some "egregious" behavior on the job. "Without a nexus to the workplace, only law enforcement disciplines its employees for off the job conduct."

Mr. Payne was served with a NOD issued either March 8 or 9, 1995, and suspended for the incident with Mrs. West. Suspension applies if in the opinion of the employer there is "just cause to suspend" because the individual is a danger to himself or others or his/her presence at work would interfere with the normal conduct of business. These are the two criteria from the collective bargaining agreement from which the employer can base suspension. The NOD was grieved by Mr. Payne, and was scheduled for arbitration. Mr. Cooke recalled that the matter never went to arbitration because the Governor's Office of Employee Relations advised the agency that Mr. Payne had not provided the "necessary funding" for the arbitration panel, thus the penalty could be imposed directly. Mr. Payne was terminated on August 25, 1995, but had been suspended since March 14, 1995. [Exhibits 5 and H, pp 1].

On cross-examination, Mr. Cooke reaffirmed that there would be discipline with respect to off-the-job behavior if it was related to the job. Shown Exhibit 64 - Mr. Payne's DMV driving abstract - Mr. Cooke agreed it showed a number of violations. He would only agree that these violations would be related to the work place for one whose job it was to drive if they occurred while on-the-job, or if they caused him to actually lose his license. Mr. Payne did not, it appears, have an annual evaluation in 1994, but Mr. Cooke did not see anything in the personnel record that specifically explained why none was done. He agreed that a failure to complete an annual evaluation might constitute "managerial failure" but that there were other reasons why an employee might get "off cycle" for evaluations such as long term leave, change of positions, etc. He speculated that perhaps the change in the job titles in October,1994 changed the cycle, but could not say if that was indeed the case.

Mr. Cooke said there was no random testing for drug or alcohol abuse from 1984 to March 1995. Only "reasonable suspicion" on the part of the supervisor that an employee was "unfit" might trigger such testing. Mr. Cooke would not agree that a supervisor might think of testing for alcohol abuse when an employee had two dump truck accidents on the same day - as did Mr. Payne - was appropriate "at that time." He explained that in order to send someone for testing, one would have to "have some observable criteria, such as slurred speech, unsteady gait

. . . any of the traditional signs that a person may be under the influence." Mr. Cooke said that by itself, behavior "devoid of common sense" would "not lead necessarily to testing, although it might lead to a more thorough investigation of the facts, and who knows where that might lead." He agreed that the misconduct of an employee who was absent without leave for 8 hours would not constitute a "serious" violation; but that hitting high wires with a truck, breaking into a car, stealing an alternator, working on the part on company time, and reckless driving and speeding would all be serious concerns. These concerns were, indeed, addressed within the disciplinary process allowed by the union contract.
As a result of the incident occurring on March 8, 1995, Mr. Payne was criminally charged with two counts each of assault: one intentional and one reckless, as well as harassment [
see Exhibit 11], Mr. Payne was found guilty of Reckless Assault, a Class A misdemeanor, and Harassment, a violation. [Exhibit 16].
After hearing all the testimony, the Court is still unsure as to who could actually fire Mr. Payne, though it seems that between them perhaps Mr. Cooke and Mr. Jones could wield the axe. Given the logjam on personnel issues described by most of the witnesses, however, it is likely that "somebody else" might need to sharpen the blade first.
Discussion and Conclusion
As noted, two theories of liability have been advanced by Mrs. West. First, she asserts that the State of New York should be held vicariously liable for Richard Payne's assault upon her based upon the doctrine of respondeat superior. Second, she asks that direct liability be imposed upon the State of New York premised upon DOT's negligent retention of its employee, Richard Payne.

Under the doctrine of respondeat superior, an employer may be liable for the tortious acts of its employee if the tortious acts occurred within the scope of employment.
Riviello v Waldron, 47 NY2d 297, 302 (1979). What constitutes the scope of employment has been somewhat elastically defined by the Court of Appeals, and depends largely upon the facts of each case. The factors to be examined include: ". . . 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 employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated . . . (citation omitted)." Riviello v Waldron, supra at 303. ". . . [T]he employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected . . . (citation omitted)," the employer may be vicariously liable. Riviello v Waldron, supra at 304.
Thus in
Riviello v Waldron, supra, examining the facts in the light most favorable to the plaintiff[3], the Court of Appeals found that the employee of a local tavern - who acted as a cook, waiter and bartender for his employer - acted in the scope of his employment when he negligently caused the plaintiff to lose an eye. Earlier, as part of the practice of "mingling with the patrons," the employee had been exhibiting a pocket knife to plaintiff and other customers as they discussed crime in the neighborhood. The employee went to the kitchen to fill a food order. When he walked back from the kitchen area, still holding the knife in his hand, the plaintiff turned suddenly, and his eye came in contact with the blade. The Court found that while the specifics of the injury-causing act might not necessarily have been foreseeable, given the nature and variety of the tavern employee's job functions, carelessness and resulting injury - in handling cooking implements, for example, or in delivering food and drinks, or in behaving, generally, as imperfect employees will in pursuing their employer's work, including displaying a pocketknife - is reasonably anticipated. The negligent act was "a natural incident of the employment." [id. at 304]. The Court said: ". . . the test has come to be ‘whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions'
. . . (citations omitted)." [id. at 302].
Given this broad foreseeability precept, intentional torts committed in furtherance of the employer's business have been found - albeit rarely - to have been committed in the scope of employment.
See e.g. Jones v State of New York, 33 NY2d 275, 279 (1973);[4] Sims v Bergamo, 3 NY2d 531 (1957)[5], but cf. Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 (2d Dept 2005).[6] While most cases finding that the assaultive conduct is related to the employer's business have a more direct nexus to the actual job, where, as here, given the foreseeable conduct of Mr. Payne in running Mrs. West off the road, the balance of the conduct - the reckless assault - is also foreseeable as the natural consequence of the chain of events that transpired on March 8, 1995. See e.g. Smith v The Limited, 237 AD2d 345 (2d Dept 1997).
What happened here is road rage run rampant, starting with Mrs. West's imperfect pass on Route 300, followed by a State employee forcing a member of the public off the highway while he was engaged in the State's business. The events triggered thereafter - including Mr. Payne's attempts to grab the pen and paper from Mrs. West, and the physical contact that followed - flow directly from the initial, more directly predictable, conduct. Mrs. West alleges in her claim that the State is liable for its employee's assault, and the injuries she suffered as a result of that assault. This Court agrees.

Applying the factors enunciated in
Riviello v Waldron, supra, Mr. Payne was acting in furtherance of his employer's business as he drove the truck on the highway with a coworker, to test how the hopper they'd installed sat on the truck, on his way to do some banking business as was generally allowed during the work day, and when - predictably, given his track record - he chose to force Mrs. West's car to the side of the road after she passed his truck. That act, based upon the prior history of this employee, is clearly one that the employer could have reasonably anticipated. The subsequent chain of events is where the State's liability for its servant's acts, and the responsibility Mrs. West shares for any injuries she suffered, merge.
It is arguably within the realm of reason for Mrs. West to follow an unmarked truck to ascertain the plate number in order to report the incident to someone in authority. That is not why she followed the truck, however. She testified that she followed the truck off the highway with her daughter in the backseat, as it sped through a residential area, and into a shopping plaza parking lot, in order to "confront the driver about his driving." And the desired confrontation occurred. Each actor vented - admittedly shouting and screaming - and then returned to his and her respective vehicles. Then, finding that she did not have the information she needed to actually report the driver, Mrs. West followed him through the parking lot again. When Mr. Payne then proceeded to first drive his truck toward Claimant as if to run her over, and then grabbed her arm to retrieve the piece of paper, he continued to act as a man with this kind of a track record would behave.

Accordingly, the Court finds that the reckless assault by Mr. Payne upon Mrs. West was committed within the scope of employment, and the State should be held vicariously liable for its employee's acts.

In order to hold Defendant directly liable under a negligent retention theory, the Claimant was required to establish that the employer knew or should have known of the employee's propensity for the sort of conduct which caused the injury.
Detone v Bullit Courier Serv., 140 AD2d 278 (1st Dept 1988), lv denied 73 NY2d 702 (1988). In a negligent retention cause of action, the negligence of the employer arises from its ". . . having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the . . . retention of his employee." Detone v Bullit Courier Serv., supra, at 279.
Thus, in
Detone v Bullit Courier Serv., supra, a courier employed by defendant rode his bicycle into the plaintiff. Plaintiff reacted by swinging a bag at him. The cyclist then struck plaintiff in the head, knocking him unconscious, and causing him to fall and hit his head on the pavement, suffering severe neurological impairment. The jury dismissed the cause of action against the employer premised on vicarious liability, but found that the employer was directly liable for the negligent hiring and retention of the employee.
The Appellate Division then reversed the jury verdict for plaintiff saying: "The evidence before the jury arguably relevant to the issue of . . . [the employer's] negligence in hiring . . . [the courier] indicated that . . . [the courier] had, on two occasions prior to the incident with plaintiff, been either fired or laid off by . . . [the employer]. There was no evidence as to what caused . . . [the employer] to fire . . . [the employee/courier], the only testimony being that had it been something more serious than excessive lateness or absence it would have been noted in . . . [the employer's] records and . . . [the courier] would not have been rehired. Nothing adduced at trial indicated that . . . [the employee] had a history of or propensity for violence, much less was there evidence that . . . [the employer] had any knowledge that its employee might be dangerous."
Detone v Bullit Courier Serv., supra, at 279. The Court reiterated the rule that an employer may be liable in damages for its employee's tort ". . . against a third party when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm . . . (citations omitted)." [id.].
Unlike the employer in Detone v Bullit Courier Serv., supra, however, DOT had more than an inkling that Mr. Payne might pose a problem.
Mr. Payne's employment history is appalling. Although nothing in that history directly shows that he would be likely to assault somebody, by implication, given his evident disregard for others and for the applicability of any rules of conduct to his own behavior, it is foreseeable that Mr. Payne would run someone off the road, have a verbal disagreement, use his truck as an instrument of menace, and recklessly seize the piece of paper and the pen held by Mrs. West, thus yanking at her arm as described. Mr. Payne - on documented occasions over a 10-year history - abused employee benefits, drove recklessly, disregarded the safety of his fellow workers while on the job, stole property, was belligerent to his supervisors and may (or may not - it was never established) have abused controlled substances or alcohol on the job, and although there is no indication that he ever engaged in intentionally violent or assaultive behavior against fellow workers, or the public, there is every indication that his contact with others was just shy of such conduct. Given the confrontations described by Mr. Van De Mark and in the personnel history, this confrontation with Mrs. West was only a matter of time. Along the way, supervisors attempted to correct his behavior, and disciplinary proceedings were instituted and resolved. Such resolutions, however, appear to have been the product of the perception by supervisors that actually firing this gentleman would never work.

The salient point is that from this record, there has been a sufficient showing that Mr. Payne was an employee who had exhibited a propensity to disregard rules, and the safety of others, and that the State was aware, or should have been aware, that the kind of reckless violence that occurred here would likely occur given provocation. As noted, driving recklessly and forcing another driver off the road is a foreseeable act based upon the information adduced at trial. What followed, too, is a natural consequence of allowing this type of employee to continue in employment without any follow-up or methodology in place to assure that he not place the public in danger. The harm that resulted is ". . . harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the . . . retention of his employee."
Detone v Bullit Courier Serv., supra, at 279.
While certainly the State is partially liable under these facts, Mrs. West's own contribution to whatever injuries she suffered has not been forgotten. Claimant's own unreasonable behavior in pursuing a confrontation that was easily avoided, juxtaposed against Mr. Payne's behavior, renders both the State and Claimant equally liable. When Mr. Payne first ran Claimant off the road, Mrs. West could have simply driven away with her daughter in tow, and immediately reported the incident to the local police department to let them determine who that crazy DOT driver was who had driven so recklessly. Instead, she resorted to self-help and got drawn into a confrontation that placed both her and her infant daughter in a dangerous situation. With her two-year-old child in the back seat,
she chased an unknown man as he sped through a residential neighborhood - keeping up with him - and, after an initial high volume verbal confrontation, persisted in her pursuit. This was not reasonable under the circumstances.
Accordingly, although Claimant has established that the State should be held liable under both the doctrine of respondeat superior, and for its negligent retention of its employee, she, too, is responsible for the behavior leading to her injuries. The Court finds that the Defendant is 50% liable for Claimant's injuries, and the Claimant is 50% liable as well.

A trial on the issue of damages shall be held as soon as is practicable.

Let interlocutory judgment be entered accordingly.

June 21, 2005
White Plains, New York

Judge of the Court of Claims

[1] All references to Claimant refer to Yolanda West, since Vernon West's claim is strictly derivative.
[2] All quotations are to trial notes or audiotapes unless otherwise indicated.
[3] The Court stated that since its review involved focusing on whether plaintiff established a prima facie case against the employer, the facts were viewed from this perspective. Riviello v Waldron, supra at 301.
[4] The State may be liable for the use of excessive force by its correction officer employees upon inmates in the custody of the New York State Department of Correctional Services under the doctrine of respondeat superior.
[5] Bartender's assault on plaintiff/customer found to have been in furtherance of his employer's interest rendering employer vicariously liable. Court of Appeals reinstated jury verdict for plaintiff, finding it could not be said that there was no evidence supporting vicarious liability as a matter of law, when viewing the evidence in the light most favorable to the plaintiff. "From the fact that the bartender refused to serve the plaintiff when she first entered the defendant's establishment because she appeared ‘rather unruly' and ‘intoxicated' and from the fact that he suspected and accused her of breaking his employer's window, it may reasonably be inferred that the bartender believed that she was in an irascible mood and would persist in destroying his employer's property and in disturbing the peace and order of his employer's establishment if he did not take steps to prevent her. The perpetration of the assault for either of these purposes - protecting his employer's property from further damage and the maintenance of peace and order therein - would have been pursuant to unexpressed rules and in the performance of duties enjoined upon him by his employment and in the furtherance of his employer's interests." Sims v Bergamo, supra at 535.
[6] Since the bus driver's acts in sexually abusing and molesting a student passenger were clearly not in furtherance of his employer's business, and thus not committed within the scope of his employment, the bus company and the school district could not be held vicariously liable under the doctrine of respondeat superior. 793 NYS2d 170, 173.