Rafferty v. Arnot Ogden Memorial Hosp.
| Decision Date | 26 May 1988 |
| Citation | 528 N.Y.S.2d 729,140 A.D.2d 911 |
| Parties | Darlene L. RAFFERTY, Respondent, v. ARNOT OGDEN MEMORIAL HOSPITAL, Defendant, and Paul L. Leisenring, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Williamson & Clune (Howard McMahon, of counsel), Ithaca, for appellant.
DeFilippo Brothers (Frederick J. DeFilippo, of counsel), Elmira, for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and MERCURE, JJ.
Appeal from an order of the Supreme Court (Crew, III, J.), entered July 13, 1987 in Chemung County, which, inter alia, denied defendant Paul L. Leisenring's motion to require plaintiff to separately state and number the causes of action against him in the complaint.
On October 3, 1984, plaintiff was allegedly assaulted and sexually molested in her hospital room at defendant Arnot Ogden Memorial Hospital. Thereafter, she brought suit against the hospital, which, in turn, impleaded defendant Paul L. Leisenring, the alleged attacker. During the course of the litigation, the hospital discontinued its third-party action and plaintiff amended her complaint to include Leisenring as a defendant. Plaintiff served an amended complaint on Leisenring which set forth a single cause of action against him for alleged injuries and damages "cause[d] by the tortious, willful and negligent acts of the defendant, Paul L. Leisenring". Plaintiff then served a second amended complaint which still only alleged one cause of action but now characterized Leisenring's conduct as "careless, negligent, willful, intentional, and without just cause". Both the amended complaint and the second amended complaint alleged that plaintiff was "assaulted, molested and sexually abused".
A close reading of the amended and second amended complaint fails to clarify if plaintiff's single cause of action is one for negligence or if it alleges a cause of action for the intentional tort of assault and battery. As we stated in Mazzaferro v. Albany Motel Enters., 127 A.D.2d 374, 376, 515 N.Y.S.2d 631, "New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence * * *." "There is, properly speaking, no such thing as a negligent assault" (Prosser and Keeton, Torts § 10, at 46 [5th ed.]).
Accordingly, since there cannot be a verdict in plaintiff's favor upon both negligence and assault theories, and Mazzaferro would require the trial...
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Borrerro v. Haks Grp., Inc., 2017–04616
...or not it was intentional, ... there cannot be recovery for both" ( N.Y. PJI 3:3, Comment [2017 Update]; see Rafferty v. Ogden Mem. Hosp. , 140 A.D.2d 911, 912, 528 N.Y.S.2d 729 ; Murray v. Long Is. R.R. Co. , 35 A.D.2d 579, 580, 313 N.Y.S.2d 610 ). As such, "if the only inference that may ......
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Schmidt v. Bishop
...uniformly such attempts to transmogrify intentional torts into "negligence". See, e.g., Rafferty v. Arnot Ogden Memorial Hospital, 140 A.D.2d 911, 913, 528 N.Y.S.2d 729, 730 (3d Dep't 1988) (rejecting claim of negligent assault in sexual molestation case); Mazzaferro v. Albany Motel Enterpr......
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Yan Zhao v. United States
...clear that a plaintiff cannot prevail on both a claim for assault and a claim for negligence. See Rafferty v. Arnot Ogden Mem'l Hosp. , 140 A.D.2d 911, 911, 528 N.Y.S.2d 729 (3d Dep't 1988) ("[O]nce intentional offensive contact has been established, the actor is liable for assault and not ......
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Merzon v. County of Suffolk, No. CV-85-3907 (ADS).
..."negligent firing" and these causes of action are dismissed. In this regard, the Court notes that Rafferty v. Arnot Ogden Memorial Hosp., 140 A.D.2d 911, 528 N.Y.S.2d 729 (3d Dep't 1988), is instructive. In Rafferty it was held that intentional assault was legally incompatible with negligen......