Haybeck v. Prodigy Services Co.

• Decision Date: 12 November 1996
• Docket Number: 95 Civ. 9612(SS).
• Parties: Barbara HAYBECK, Plaintiff, v. PRODIGY SERVICES COMPANY, a Partnership of Joint Venture with IBM Corporation and Sears Roebuck and Co., and Jacob Jacks, Defendants.
• Court: U.S. District Court — Southern District of New York

944 F.Supp. 326

Barbara HAYBECK, Plaintiff, v. PRODIGY SERVICES COMPANY, a Partnership of Joint Venture with IBM Corporation and Sears Roebuck and Co., and Jacob Jacks, Defendants.

95 Civ. 9612(SS).

United States District Court, S.D. New York.

November 12, 1996.

Parker & Waichman, Jerrold S. Parker, Great Neck, NY, for Plaintiff.

Phillips Nizer Benjamin Krim & Ballon, L.L.P., New York City (Perry S. Galler, Thomas G. Jackson, Liza M. Cohn, Michael Fischman, of Counsel), for Defendants Prodigy Services Company, International Business Machines Corporation and Sears Roebuck and Co., Inc.

OPINION AND ORDER

SOTOMAYOR, District Judge.

In this diversity action, plaintiff alleges that she contracted the HIV virus from Jacob Jacks (hereinafter "Jacks"),¹ an employee of defendant Prodigy Services Company (hereinafter "Prodigy"), whom plaintiff first met in an on-line Prodigy sex chat room. Plaintiff contends that under theories of respondeat superior or negligent hiring and retention, Prodigy is responsible for Jacks' transmission of the HIV virus to her because Prodigy knew that Jacks had the AIDS virus and knew that Jacks was having sex with customers he met on-line. Prodigy moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint on the ground of failure to state a claim upon which relief can be granted. For the reasons to be discussed, defendant's motion to dismiss is granted.

BACKGROUND

Plaintiff's complaint alleges that Prodigy injured plaintiff by its negligent conduct in allowing their employee, Jacob Jacks, to have sexual intercourse with customers with the knowledge that Jacks had AIDS. Although the complaint asserts that Prodigy's conduct injured plaintiff, it does not explain how.² Plaintiff's Affidavit and Memorandum of Law in Opposition to the instant motion, however, explain that after Jacks denied being HIV positive, plaintiff had sexual intercourse with him and contracted the AIDS virus. (Haybeck Aff.; Pl.Mem. at 4 — 5).

The facts, assumed to be true for purposes of this motion, are that:

At some time prior to November 11, 1994 the plaintiff Barbara Haybeck became a customer of the defendant Prodigy. Prodigy sold time on their computer service and Barbara bought same. Jacob Jacks was an employee of Prodigy. Mr. Jacks was a sexual predator who had full blown AIDS, a fact known and admitted by Prodigy. ...

By using his position as an employee of Prodigy, Jacks was able to spend countless hours on-line with plaintiff while he was at work at Prodigy's offices. In addition, Jacks gave plaintiff months of "free time" on the Prodigy network, as well as unlimited use of his own Prodigy account. The motive for this conduct was solely to entice Barbara Haybeck, by any means necessary, into an illicit and aberrant relationship that resulted in her having a consensual sexual relationship with Jacks. Both before and during this relationship, Jacks repeatedly denied having AIDS. Thereafter, and as a direct result of this sexual relationship, Barbara Haybeck contracted AIDS — from which she will die.

(Pl.'s Mem. at 4 — 5.)

Plaintiff contends that Prodigy "should have taken special precautions to prevent" Jacks' conduct. (Compl. ¶ 150) Plaintiff also insists that her injuries were "due solely to the negligence, carelessness, recklessness and gross negligence of the defendants in their ownership, operation, management, repair and control of their agents, servants, employees and their on-line network and through no fault of lack of care on the part of the plaintiff." (Compl. ¶ 151.)

Defendant argues, however, that Prodigy is not responsible for plaintiff's contraction of the AIDS virus from Jacob Jacks because Jacks' sexual intercourse with plaintiff fell outside the scope of his employment. Further, it maintains that Prodigy owed no duty to plaintiff to "[i]nvolve itself in her personal or sexual conduct," (Def.Mem. at 17), because Prodigy was forbidden by law and public policy either to inquire into Jacks' HIV status or to control his relations with persons outside the work environment. (Def.Mem. at 18 — 21.) Defendant also contends that plaintiff's consent to the sexual union was an "unforeseeable superseding act" which "absolve[s]" Prodigy of "any possible liability." (Def.Mem. at 22). Finally, defendant urges that plaintiff cannot satisfy the jurisdictional threshold of $50,000 required for diversity jurisdiction because she accepted a contractual limitation of liability with Prodigy that limits her recovery to an amount below the threshold. (Def.Mem. at 24 — 25.)

DISCUSSION

A district court's function on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to assess the legal feasibility of the complaint. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.1991). The issue "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Allegations contained in the complaint must be construed favorably to the plaintiff. Walker v. New York, 974 F.2d 293, 298 (2d Cir.1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). Dismissal is warranted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted)).

In considering a Rule 12(b)(6) motion, a court must look to: (1) the facts stated on the face of the complaint; (2) documents appended to the complaint; (3) documents incorporated in the complaint by reference; and (4) matters of which judicial notice may be taken. Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.1993) (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)). See also Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir.1993) (same). In this case, I take judicial notice of the facts alleged in plaintiff's affidavit submitted in opposition to the instant motion because the facts explain the predicate for plaintiff's cause of action.

I. Scope of Employment

The central issue in this case is whether Jacob Jacks' failure to disclose his HIV status before having sexual intercourse with the plaintiff was conduct which can be deemed to fall, as a matter of law, within the scope of his employment with Prodigy. I understand that "because the determination of whether a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury." Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (Ct.App.1979). However, where a court takes as true all the facts alleged by plaintiff and concludes that the conduct complained of cannot be considered as a matter of law within the scope of employment, then the court must dismiss the complaint for failure to state a claim. See, e.g., Rappaport v. International Playtex Corp., 43 A.D.2d 393, 352 N.Y.S.2d 241 (3d Dep't.1974) (reversing lower court for failing to dismiss where conduct fell outside of the scope of employment as a matter of law); cf. Petrousky v. United States, 728 F.Supp. 890 (N.D.N.Y.1990) (holding as a matter of law that plaintiff's supervisor was acting within the scope of his employment when he libeled plaintiff in disciplinary memoranda).

In considering whether a particular act falls within an employee's scope of employment, New York courts look to five factors:

[1] the connection between the time, place and occasion for the act, [2] the history of the relationship between employer and employee as spelled out in actual practice, [3] whether the act is one commonly done by such an employee, [4] the extent of departure from normal methods of performance; [5] and whether the specific act was one that the employer could reasonably have anticipated.

Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (Ct.App.1979). Here, defining carefully the precise act which is the subject of the complaint is crucial. To that end, it must be noted that plaintiff does not complain of Jacks' sexual relationship with her, but rather she complains of his failure to tell her that he was HIV positive and to engage in protected sex. In fact, plaintiff admits that she fully consented to the sexual union. Plaintiff insists, however, that had she known Jacks was HIV positive, she would never have consented to having sex with him. Hence, the core of plaintiff's complaint is that Jacks' failure to give her this information caused her injury, and it, therefore, is the proper focus of the scope of employment inquiry.

Can it be said, then, that Jacks was acting within the scope of his employment with Prodigy when — outside the place of employment — he decided to conceal his HIV status from, and have unprotected sex with, a sexual partner? I conclude the answer is no. Courts have repeatedly held that acts taken and decisions made on an employee's personal time outside of work cannot be imputed to an employer. "New York courts have stated that `where an employee's conduct is brought on by a matter wholly personal in nature, the nature of which is not job-related, his actions cannot be said to fall within the scope of his employment.'" Longin v. Kelly, 875 F.Supp. 196, 201 — 203 (S.D.N.Y.1995) (quoting Stavitz v. City of New York, 98 A.D.2d 529, 531 471 N.Y.S.2d 272, 274 (1st Dep't 1984)); see also Joseph v. City of Buffalo, 83 N.Y.2d 141, 146, 608 N.Y.S.2d 396, 629 N.E.2d 1354 (Ct. App.1994) (police officer not acting within the scope of his employment when he left a service revolver where a child found it, even where a municipal law required the officer to have the gun nearby for emergencies); Kelly v. City of New York, 692 F.Supp. 303, 308 (S.D.N.Y.1988) (city not liable for...