Rossetti v. Board of Education of Schalmont Central School district
| Decision Date | 16 November 2000 |
| Citation | 277 A.D.2d 668,716 N.Y.S.2d 460 |
| Parties | JANET ROSSETTI, as Parent and Guardian of STEVEN ROSSETTI, an Infant, Appellant,<BR>v.<BR>BOARD OF EDUCATION OF SCHALMONT CENTRAL SCHOOL DISTRICT et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
This action seeks to recover compensatory damages for injuries to Steven Rossetti (hereinafter the infant), while in the exclusive care and custody of defendant Schalmont Central School District (hereinafter School District). The infant, seven years old at the time of the injury, is a spastic quadriplegic, unable to walk or speak, who spends the majority of his waking hours confined to a wheelchair. Defendant Rosalind Marshall was employed by the School District as the infant's full-time personal aide during school hours and had served in that capacity since 1993.
On the morning of November 15, 1995, plaintiff placed the infant on the School District's bus for transportation to school and alleges that he was then uninjured. The complaint alleges that the infant suffered a spiral fracture to his right femur caused by a forced twisting motion—an injury that the infant was incapable of self-inflicting—when Marshall was changing the infant's diaper, reclothing him or returning him to his wheelchair.
Prior to the commencement of trial, defendants stipulated that Marshall had been acting within the scope of her employment, thus rendering the School District vicariously liable for her negligence. Based on this stipulation, defendants sought and Supreme Court granted dismissal of the fifth and sixth causes of action against the School District which sounded in negligent hiring and negligent retention.
At the conclusion of plaintiff's case, Supreme Court also granted defendants' motion to dismiss plaintiff's third and fourth causes of action which alleged assault and battery and negligent infliction of emotional distress against Marshall. The court reserved judgment on defendants' motion to strike the remainder of plaintiff's causes of action and on plaintiff's motion for a directed verdict. Thus, the causes of action which remained against Marshall sounded in negligence and negligence on the theory of res ipsa loquitur and against the School District for negligence on the theory of res ipsa loquitur and for respondeat superior. Without ruling on the reserved motions, the court submitted the case to the jury with a verdict sheet which asked only whether Marshall was negligent. No question concerning the negligence of the School District was included on the verdict sheet. The jury found Marshall not negligent and, therefore, did not reach the issues of proximate cause or damages.
Plaintiff filed two notices of appeal, one from the verdict seeking a review of all appealable issues and one from the denial of her subsequent CPLR 4404 (a) motion to set aside the verdict and for either a directed verdict in favor of plaintiff and a new trial solely on the issue of damages or, in the alternative, a trial de novo. Plaintiff's appeal from the verdict was subsequently withdrawn and, consequently, the record does not contain the trial transcript. As limited by her brief, plaintiff's issues presented for our review concern Supreme Court's refusal to charge the jury with respect to the potential liability of the School District for the infant's injuries on the causes of action specifically pleaded against the School District.
First, we find no merit to plaintiff's contention that Supreme Court erred in dismissing the fifth and sixth causes of action sounding in negligent hiring and negligent retention of an employee. After the School District stipulated that Marshall was acting within the scope of her employment, these causes of action are unnecessary for the purpose of imposing liability for plaintiff's damages against the School District. Where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondeat superior and no claim may proceed against the employer for negligent hiring...
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