Hall v. Danforth

• Decision Date: 04 April 1991
• Citation: 567 N.Y.S.2d 958,172 A.D.2d 906
• Parties: Thomas J. HALL, Respondent, v. David L. DANFORTH, Defendant, and Vincent A. Mai, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 958

567 N.Y.S.2d 958

172 A.D.2d 906

Thomas J. HALL, Respondent, v. David L. DANFORTH, Defendant and Vincent A. Mai, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 4, 1991.

Carter, Conboy, Bardwell, Blackmore & Napierski (Dianne Bresee Mayberger, of counsel), Albany, for appellant.

McClung, Peters & Simon (Christine M. Legorius, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and MIKOLL, YESAWICH, CREW and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Cobb, J.), entered June 6, 1990 in Columbia County, which denied defendant Vincent A. Mai's motion for summary judgment dismissing the complaint against him.

This personal injury action stems from an incident which occurred on November 21, 1988, the first day of deer hunting season, on Kinderhook Farm in the Town of Ghent, Columbia County. On that day, plaintiff was accidentally shot in the leg by defendant David L. Danforth, the caretaker of Kinderhook Farm, while Danforth was attempting to shoot a deer that was grazing there. Although it is undisputed that Danforth's employer, defendant Vincent A. Mai (hereinafter defendant), did not allow hunting on the farm and posted signs to that effect, Danforth hunted there regardless and apparently gave others permission to do so, including plaintiff. A nine-point buck had been seen in the area of defendant's farm and several of the local hunters were interested in shooting it. Along with bringing suit against Danforth for his injuries, plaintiff also commenced suit against defendant asserting that defendant is vicariously liable for the acts of his employee under the doctrine of respondeat superior. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint against him claiming that, as a matter of law, respondeat superior did not apply here. Supreme Court denied the motion and this appeal by defendant followed.

There must be a reversal. Pursuant to the doctrine of respondeat superior, "an employer may be held vicariously liable for a tort committed by an employee in the course of performance of his or her duties" (Murray v. Watervliet City School Dist., 130 A.D.2d 830, 515 N.Y.S.2d 150). However, if the tort was committed by the employee solely for personal ends, rather than in furtherance of or incident to the employer's business, liability for the employee's acts may not be imputed to the employer (Horowitz v. Sears, Roebuck & Co., 137 A.D.2d 492, 524 N.Y.S.2d 236). While what constitutes the "scope of employment" in these cases is most often a jury question (see, Riviello v. Waldron, 47 N.Y.2d 297, 302-303, 418 N.Y.S.2d 300, 391 N.E.2d 1278; Young Bai Choi v. D & D Novelties, 157 A.D.2d 777, 778, 550 N.Y.S.2d 376), a trial is not necessary where a defendant's right to summary judgment is established as a matter of law (see, e.g., Horowitz v. Sears, Roebuck & Co., supra; Island Associated Coop. v. Hartmann, 118 A.D.2d 830, 500 N.Y.S.2d 315; Matter of Parker v. Port Auth. of N.Y. & N.J., 113 A.D.2d 763, 493 N.Y.S.2d 355; Arriaga v. State of New York, 111 A.D.2d 663, 490 N.Y.S.2d 221).

Here, the evidence as established by defendant's moving papers and the excerpts from the examinations before trial is as follows. Danforth had been employed by defendant for over three years prior to the accident as a live-in farm manager. The farm chiefly produced feed for dairy cows although the particular field where the accident took place only contained uncultivated pasture. Plaintiff's father, Robert Hall, Jr., stated at his examination before trial that Danforth often gave him permission to hunt and take wood off defendant's property with the clear...