Mary KK v. Jack LL

• Decision Date: 28 April 1994
• Citation: 611 N.Y.S.2d 347,203 A.D.2d 840
• Parties: , 90 Ed. Law Rep. 1178 MARY KK, Individually and as Parent and Natural Guardian of Jamie "KK", 1 an Infant, Appellant, v. JACK LL, 1 Defendant, and Johnson City Central School District, Respondent. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 347

611 N.Y.S.2d 347

203 A.D.2d 840, 90 Ed. Law Rep. 1178

MARY KK, Individually and as Parent and Natural Guardian of

Jamie "KK", ¹ an Infant, Appellant, v. JACK LL, ¹ Defendant, and Johnson City Central School District, Respondent.

Supreme Court, Appellate Division,

Third Department.

April 28, 1994.

Vitanza, Brown & Ciaravino (David M. Brown, of counsel), Endwell, for appellant.

Hogan & Sarzynski (Michael G. Surowka, of counsel), Binghamton, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Smyk, J.), entered November 10, 1992 in Broome County, which granted a motion by defendant Johnson City Central School District for summary judgment dismissing the complaint against it.

On July 13, 1989, the Superintendent of defendant Johnson City Central School District (hereinafter the District) received a telephone call from an individual who identified herself only as a former student. She told him that one of the District's male high school teachers, defendant Jack "LL" (hereinafter the teacher), had engaged in inappropriate sexual behavior with two high school girls whom she did not identify. The Superintendent immediately met with the teacher who denied the accusations. In the middle of August 1989, plaintiff was told by her daughter about the teacher's behavior. Plaintiff, in turn, reported the behavior to the Johnson City Police which led to the arrest of the teacher; the teacher eventually pleaded guilty to the crime of endangering the welfare of a child and was sentenced to jail. He also resigned from his teaching position. Plaintiff thereafter commenced this action against the teacher and the District wherein it was alleged, inter alia, that the District was responsible for the teacher's acts of sexual misconduct. Supreme Court granted the District's motion for summary judgment dismissing the complaint against it and this appeal by plaintiff ensued. ²

To ascertain if Supreme Court's issuance of summary judgment in favor of the District was warranted, we must determine if the District established that plaintiff's causes of action based upon the doctrine of respondeat superior and the claim of negligent supervision lack merit (see, GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 966, 498 N.Y.S.2d 786, 489 N.E.2d 755). A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee's duties (see, Murray v. Watervliet City School Dist., 130 A.D.2d 830, 515 N.Y.S.2d 150). What constitutes the "scope of employment" is generally a jury question, but "summary judgment is appropriate where there is no conflicting evidence or the facts are undisputed" (Crawford v. Westcott Steel Co., 188 A.D.2d 731, 732, 590 N.Y.S.2d 593).

Here, it is undisputed that on several occasions between April 1989 and June 1989, the teacher molested plaintiff's daughter who was then a junior in the District's high school. Although these acts occurred on school property during school hours, they were clearly outside the scope of the teacher's employment as they were wholly personal in nature and certainly not done in the furtherance of the District's business (see, Nicollette T. v. Hospital for Joint Diseases/Orthopaedic Inst., 198 A.D.2d 54, 603 N.Y.S.2d 146; Hall v. Danforth, 172 A.D.2d 906, 567 N.Y.S.2d 958). Therefore, we conclude that, as a matter of law, the doctrine of respondeat superior is inapplicable to this case.

We shall...