Rivera v. State, 92

• Citation: 142 N.E.3d 641,119 N.Y.S.3d 749,34 N.Y.3d 383
• Decision Date: 25 November 2019
• Docket Number: No. 92,92
• Parties: Jose RIVERA, Appellant, v. STATE of New York, Respondent. (Claim No. 120113.)
• Court: New York Court of Appeals

34 N.Y.3d 383

142 N.E.3d 641

119 N.Y.S.3d 749

Jose RIVERA, Appellant,

v. STATE of New York, Respondent.(Claim No. 120113.)

No. 92

Court of Appeals of New York.

November 25, 2019

OPINION OF THE COURT

Chief Judge DiFIORE.

Correction officers are tasked with the formidable and critical responsibility of protecting the safety of inmates and coworkers while maintaining order in correctional facilities ( Arteaga v. State of New York, 72 N.Y.2d 212, 217, 532 N.Y.S.2d 57, 527 N.E.2d 1194 [1988] ). When that obligation is breached, the State may be directly liable for injuries suffered by an inmate if it acted negligently, by failing to properly hire, train or supervise its employees, or vicariously liable if a culpable employee intentionally or negligently caused the injuries while acting in the scope of employment. The only question before us in this assault and battery case is whether the courts below erred in concluding the State met its summary judgment burden, establishing that it could not be liable under the doctrine of respondeat superior for injuries an inmate sustained during a brutal and unprovoked attack initiated by a correction officer. Because they did not, we affirm.

The relevant facts are not disputed. In January 2010, claimant was an inmate at a prison operated by the State Department of Correctional Services ("DOCS").¹ One morning when claimant entered the prison mess hall, correction officer Michael Wehby mocked his medically-issued protective helmet, which he was required to wear due to a seizure disorder. Claimant asked Wehby not to make fun of his helmet, fearing harassment by other inmates, and walked towards the food serving line. Wehby called claimant back to the doorway of the mess hall. When claimant obliged, Wehby grabbed claimant's jacket, pulled him outside the mess hall and began punching him on the face and head. Claimant was forced to his knees while Wehby hit and stomped on him, at which point two other correction officers—Officer Robert Femia and Sergeant Joseph LaTour—pushed claimant down and applied handcuffs. Wehby removed claimant's helmet and continued the assault, yelling expletives and saying, in substance, "I hope you die." While immobilized on the floor, claimant was punched, kneed and kicked in the head. At this juncture, Wehby struck claimant in the head with his radio with such force that the battery became dislodged and hit the wall. Eventually, claimant lost consciousness. During the prolonged, brutal attack, claimant did not resist or fight back, sustaining serious injuries. When claimant was eventually brought to the facility emergency room, medical staff were falsely told that his injuries were the result of a seizure. No mention was made that force had been used on him.

Soon after the incident, the DOCCS Inspector General's Office conducted an investigation. Although Wehby, Femia and LaTour gave statements to the Inspector General's Office containing facts contrary to those described above, their alternative version of events was deemed incredible. Among other disciplinary charges, all three were cited for providing false or misleading statements to the Inspector General; Wehby and LaTour were found to have engaged in the inappropriate use of force. Wehby was subsequently criminally prosecuted for the assault and, after a mistrial, pleaded guilty to official misconduct. All three correction officers lost their jobs (Wehby apparently had sufficient service credit to retire).

Over a year after the attack, claimant was granted permission from the Court of Claims to file a late notice of claim, authorizing the filing of this claim (No. 120113) against the State of New York pleading causes of action for assault and battery. The State answered, denying all allegations for which a response was necessary.² Approximately seven months later, claimant filed a second claim against the State (No. 120949), alleging six causes of action—failure to provide adequate protection, gross negligence, excessive force, failure to properly train and supervise, negligence per se (for assault and battery), and intentional infliction of emotional harm. Shortly thereafter, this claim was voluntarily discontinued by stipulation of the parties.

Several years later, claimant—represented by new counsel—moved for summary judgment on the second claim, attaching only that claim to the motion.³ Referencing several of the causes of action in the second, discontinued claim, claimant contended that DOCCS' dismissal of its employees for use of excessive force and providing false or misleading information to the Inspector General was an admission demonstrating the absence of material issues of fact. With respect to the State's vicarious liability for the acts of the correction officers, claimant argued, in summary fashion, that they acted within the scope of employment because they "were on duty, in uniform, supervising inmates" at the time of the assault. However, addressing the excessive force cause of action, claimant also asserted that there was "no justification whatsoever" for the attack on him. In support of the motion, claimant submitted, among other things, the Inspector General's report and an affidavit describing the assault in terms consistent with the description set forth above.

The State opposed claimant's summary judgment motion, noting that the second claim had never been properly served and had been dismissed, leaving pending only the first claim for assault and battery, and arguing that claimant's failure to attach the proper pleading to the motion required its denial. In its cross motion for summary judgment, the State contended, among other things, that there was no basis on which it could be held vicariously liable for assault and battery, citing claimant's descriptions of the incident, because Wehby's assault was outside the scope of employment. The State emphasized that the unjustified and unauthorized use of force was a clear departure from DOCCS policies and procedures governing use of force. Claimant did not oppose the State's motion for summary judgment.

The Court of Claims denied claimant's motion for summary judgment based on the failure to attach the correct claim but noted that, even if it considered claimant's arguments in relation to the pending assault and battery claim, the result would be the same. The court granted defendant's cross motion for summary judgment,⁴ holding that Wehby's attack was, as a matter of law, outside the scope of employment. After describing the elements of assault and battery, the court determined that, based on the undisputed facts, there was "no reasonable connection" between the assault and the duties normally performed by correction officers, deeming the attack a "substantial departure" from the normal methods of performance. Further, the court reasoned that the "abhorrent" and unprovoked attack was wholly attributable to personal motive, reflected by the lack of any plausible justification for such vicious force. Reasoning that DOCCS "could not [have] reasonably anticipate[d] that [Wehby] would act in such a heinous way," the court held there was "no viable basis upon which the State of New York may be held liable" for assault and battery. The Appellate Division affirmed.

In this Court, claimant contends that the Court of Claims erred in granting the State's summary judgment motion because the assault was within the scope of the correction officers' employment and thus, the State is liable under the doctrine of respondeat superior. We are unpersuaded. Based on the undisputed facts, consistently presented in the parties' summary judgment papers, no reasonable fact-finder could conclude that the assault constituted action taken within the scope of employment. Accordingly, the court did not err in determining that the State could not be held vicariously liable for the assault and battery.

Although claimant raised additional theories of recovery in his second claim, the only causes of action that remained pending—and which were the subject of the State's motion for summary judgment—were the intentional torts of assault and battery pleaded in the first claim. Battery is the unjustified touching of another person, without that person's consent, with the intent to cause a bodily contact that a reasonable person would find offensive; "[a]ssault involves putting a person in fear of a battery" ( Jeffreys v. Griffin, 1 N.Y.3d 34, 41 n 2, 769 N.Y.S.2d 184, 801 N.E.2d 404 [2003] ; see Wende C. v. United Methodist Church, N.Y. W. Area, 4 N.Y.3d 293, 298, 794 N.Y.S.2d 282, 827 N.E.2d 265 [2005] [citation omitted]; PJI2d 3:2, 3:3 ). Thus, claimant sought to hold the State vicariously liable, on the basis of respondeat superior, for the intentional and offensive bodily contact perpetrated by its employees.

Under the common-law doctrine of respondeat superior, an employer—including the State—may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment (see Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 [1999], citing Riviello v. Waldron, 47 N.Y.2d 297, 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [1979], Jones v. State of New York, 33 N.Y.2d 275, 352 N.Y.S.2d 169, 307 N.E.2d 236 [1973] ). "[T]he employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment" ( Judith M., 93 N.Y.2d at 933, 693 N.Y.S.2d 67, 715 N.E.2d 95 ). Liability attaches "for the tortious acts of ... employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" ( Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480, 484, 982 N.Y.S.2d 431, 5 N.E.3d 578 [2014], quoting N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ). Thus, if an employee "for purposes of [their] own departs from...