Riviello v. Waldron

Decision Date07 June 1979
Citation418 N.Y.S.2d 300,47 N.Y.2d 297,391 N.E.2d 1278
Parties, 391 N.E.2d 1278 Donald RIVIELLO, Appellant, v. Joseph WALDRON, Defendant, and Raybele Tavern, Inc., Respondent.
CourtNew York Court of Appeals Court of Appeals


Plaintiff Donald Riviello, a patron of the Pot Belly Pub, a Bronx bar and grill operated by the defendant Raybele Tavern, Inc., lost the use of an eye because of what was found to be negligence on the part of Joseph Waldron, a Raybele employee. The jury having decided for the plaintiff, in due course the trial court entered a judgment in his favor for $200,000 plus costs and interest from the date of the verdict. It later amended the judgment to reflect a payment of $25,000 which the plaintiff had received in advance of trial from Waldron's personal liability insurer in return for a general release conditioned upon a reservation of plaintiff's rights against Raybele.

On plaintiff's appeal to us, the principal issues we confront are: (1) whether, as a matter of law, Waldron's negligence, which Riviello sought to impute to Raybele on the theory of Respondeat superior, was outside the scope of the employment and, if not, (2) whether, under section 15-108 of the General Obligations Law, the prejudgment settlement between plaintiff and Waldron operated to bar any recovery by plaintiff against Raybele, an assertion on which, in the light of the ground for the Appellate Division's decision, it did not have to pass. For the reasons which follow, we believe both questions should be answered in the negative.

The relevant facts are easily set forth. And, because, in the posture in which the case comes to us, our examination focuses on whether plaintiff established a prima facie case against Raybele, we, of course, do so in the light most favorable to the plaintiff (De Wald v. Seidenberg, 297 N.Y. 335, 336-337, 79 N.E.2d 430, 431-432).

As was customary, on the Friday evening on which Riviello sustained his injuries, only two employees manned the Pot Belly. One was the bartender. The other was Waldron, who, in this modest-sized tavern, wore several hats, primarily that of short-order cook but also the ones that went with waiting on tables and spelling the bartender. Though his services had been engaged by Raybele's corporate president in the main to improve business by introducing the sale of food, his testimony showed that the fact that, as a local resident, he was known to most of the customers in this neighborhood bar figured in his hiring as well. There was also proof that, in the time he had been there, when not preparing or serving food or relieving the bartender, he would follow the practice of mingling with the patrons.

Nor was Riviello a stranger when he entered the premises that night. Living nearby, he had frequented the establishment regularly for some years. The two men knew one another and, after a while, Riviello gravitated to the end of the bar near the kitchen, where, during an interval when he had no food orders to fill, Waldron and another patron and mutual friend, one Bannon, were chatting. Riviello joined in the discussion, which turned to street crime in the neighborhood. In the course of the conversation, Waldron exhibited a knife, variously described as a pocketknife or, according to Bannon, a boy scout knife, containing a small blade and screwdriver attachment, which he said he carried for protection. At this point Waldron broke away to go to the kitchen to fill a food order for another patron. Several minutes later, while Waldron was returning from his chore to rejoin Bannon and Riviello, the latter suddenly turned and, as he did so, his eye unexpectedly came in contact with the blade of the knife which Waldron still had in his hand. On defendant's case, Waldron largely confirmed these facts, but added that he was "flipping" the knife, presumably as one might flip a coin, as he was coming from the direction of the kitchen and inadvertently struck the plaintiff. No one else so testified.

Applying the pertinent legal precepts to this factual framework, we first note what is hornbook law: the doctrine of Respondeat superior renders a master vicariously liable for a tort committed by his servant while acting within the scope of his employment (Mott v. Consumers' Ice Co., 73 N.Y. 543; 2 Mechem, Agency (2d ed), § 1874). The definition of "scope of employment", however, has not been an unchanging one.

Originally defined narrowly on the theory that the employer could exercise close control over his employees during the period of their service, as in other tort law contexts (see, e. g., Codling v. Paglia, 32 N.Y.2d 330, 339-341, 345 N.Y.S.2d 461, 466-467, 298 N.E.2d 622, 626-627), social policy has wrought a measure of relaxation of the traditional confines of the doctrine (see Restatement, Agency 2d, § 219, Comment (a)). Among motivating considerations are the escalation of employee-produced injury, concern that the average innocent victim, when relegated to the pursuit of his claim against the employee, most often will face a defendant too impecunious to meet the claim, and that modern economic devices, such as cost accounting and insurance coverage, permit most employers to spread the impact of such costs (see Prosser, Torts (4th ed), § 69; Seavey, Agency, § 83).

So no longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be " 'whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions' " (Jones v. Weigand, 134 App.Div. 644, 645, 119 N.Y.S. 441, quoted in Baker v. Allen & Arnink Auto Renting Co., 231 N.Y. 8, 12-13, 131 N.E. 551, 552-553 (Pound, J.)).

Thus formulated, the rule may appear deceptively simple but, because it depends largely on the facts and circumstances peculiar to each case, it is more simply said than applied (see Riley v. Standard Oil Co., 231 N.Y. 301, 304, 132 N.E. 97, 98). For, while clearly intended to cover an act undertaken at the explicit direction of the employer, hardly a debatable proposition, it also encompasses the far more elastic idea of liability for "any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act" (2 Mechem, Agency (2d ed), § 1879, p. 1461). And, 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 (Rounds v. Delaware Lackawanna & Western R. R. Co., 64 N.Y. 129, 137-138; see McLoughlin v. New York Edison Co., 252 N.Y. 202, 208, 169 N.E. 277, 279; Note, 45 U. of Cin.L.Rev. 235, 236).

That is not to say there are no useful guidelines for assessing whether the conduct of a particular employee, overall, falls within the permissible ambit of the employment. Among the factors to be weighed are: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated (see Prosser, Torts (4th ed), § 70, p. 461; Restatement, Agency 2d, § 229).

The first of these criteria need not detain us. The Pot Belly was the arena in which Waldron worked, and the evening was the time when he did so. The route from the kitchen where he would hold forth as chef to the patrons in the public room in which he performed his other functions could hardly be claimed to be a physical deviation. As to past employment practices, there was evidence that the friendly relations which Waldron enjoyed with the majority of the pub's patrons and the expectation that these would be exploited to enhance the popularity of the pub entered into the hiring itself. The implementation of this plan, pursued continuously until the day Riviello was injured, almost of necessity had to depend largely on Waldron's own personality and his judgment of how different patrons were to be handled. Pertinently, we suggest that, even if the jury had found no express understanding that Waldron would socialize, it could have drawn the inference from the nature of his job that his interaction with those visiting the premises would be a concomitant of the employment.

Surely, the fact that Waldron, at the precise instant of the occurrence, was not plying his skills as a cook, waiter or bartender did not take him beyond the range of things commonly done by such an employee. The intermittent demands of his work meant that there would be intervals in which his function was only to stand by awaiting a customer's order. Indeed, except perhaps in a world of complete automation, as portrayed for instance in Charlie Chaplin's classic film "Modern Times", the busiest of employees may be expected to take pauses and, when they do, engage in casual conversation, even punctuated, as here, by the exhibition to others of objects they wear or carry on their persons.

We turn to the extent of Waldron's departure, if it may be so characterized, from the normal methods of his performance, and to whether the specific act of carrying the pocketknife in his hand was one that the employer could reasonably...

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