Summary
setting aside jury verdict where plaintiff "failed to prove, by a preponderance of the evidence, that the employee had a history of, or propensity for, assaultive behavior and that even if such was proven, that plaintiff knew or should have known of such propensity"
Summary of this case from Wahlstrom v. Metro-North Commuter R. Co.Opinion
June 27, 1996
Appeal from the Supreme Court, New York County (Walter Relihan, J.).
We agree with defendant that plaintiff has failed to prove, by a preponderance of the evidence, that the employee had a history of, or propensity for, assaultive behavior and that even if such was proven, that plaintiff knew or should have known of such propensity. Further, the employee worked at the subject premises for approximately seven years, and was elevated from busboy to bartender, without any untoward incidents. As a result, a cause of action for negligent hiring or retention does not lie ( see, Detone v. Bullit Courier Serv., 140 A.D.2d 278, 280, lv denied 73 N.Y.2d 702; Santamarina v. Citrynell, 203 A.D.2d 57, 59). Nor was there sufficient evidence to demonstrate that the employee's negligent training or supervision led to the incident in question ( Barr v. County of Albany, 50 N.Y.2d 247, 257-258; Richardson v. New York Univ., 202 A.D.2d 295, 296-297).
Lastly, defendant cannot be held vicariously liable for the bartender's assault upon the patron outside the restaurant as employers are held vicariously liable for their employees' torts only to the extent that the underlying acts fall within the scope of employment ( Adams v. New York City Tr. Auth., 88 N.Y.2d 116; Riviello v. Waldron, 47 N.Y.2d 297). Clearly, such was not the case herein.
Concur — Sullivan, J.P., Ellerin, Ross, Nardelli and Tom, JJ.