Stevens v. Lankard

• Decision Date: 19 August 1968
• Parties: Raymond STEVENS, an infant, etc., et al., Respondents, v. Joseph LANKARD, Defendant, Fenthal Artist Materials Co., Inc., Appellant, andJohn Wanamaker Philadelphia, Inc., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 686

297 N.Y.S.2d 686

31 A.D.2d 602

Raymond STEVENS, an infant, etc., et al., Respondents, v. Joseph LANKARD, Defendant, Fenthal Artist Materials Co.,

Inc., Appellant, andJohn Wanamaker Philadelphia,

Inc., Respondent-Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 19, 1968.

Before BELDOCK, P. J., and CHRIST, RABIN, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In this negligence action defendants Fenthal Artist Materials Co., Inc. (hereinafter called Fenthal) and John Wanamaker Philadelphia, Inc. (hereinafter called Wanamaker) appeal from a judgment of the Supreme Court, Westchester County, entered August 30, 1967, (1) in favor of plaintiffs against them, upon a jury verdict of $5,000 for the infant plaintiff, Raymond Stevens, for personal injuries and $3,000 for the infant's mother, the adult plaintiff Laura Stevens, for loss of services; and (2) in favor of Wanamaker against Fenthal, upon the trial court's decision on Wanamaker's cross-complaint. Wanamaker's appeal is from so much of the judgment as is against it; and Fenthal's appeal is from the entire judgment.

Judgment reversed, on the law and the facts, without costs, and complaint and Wanamaker's cross-complaint dismissed.

The principal issue on this appeal is whether either or both of the appellants were negligent in the rehiring of defendant Lankard as an employee. On October 19, 1961 Raymond Stevens, then about 13 years of age, went with his mother to Wanamaker's Westchester store to purchase a football uniform. While they were discussing the purchase of a uniform with a Wanamaker salesman, Lankard wandered over from another counter and entered into conversation with them. The salesman suggested that the boy go into a nearby stockroom to try on the football trousers, which he proceeded to do. Lankard followed him into the stockroom and told Raymond he had come to help him with the lacing of the pants. Notwithstanding the boy's refusal of his offer of help, Lankard kneeled down in front of the boy and committed an act of sodomy. Lankard was subsequently arrested and convicted on his plea of guilty to sodomy in the second degree. Upon his conviction it was discovered that he had been previously convicted of sodomy in 1957 at Pittsburgh, Pennsylvania. At the time of the incident in question Lankard was an employee of Fenthal, which sold artists' materials and supplies as a concessionaire in the Wanamaker stores. He was originally hired in November 1960, to work for Fenthal in the Philadelphia store. In July, 1961, he left for vacation but failed to return when scheduled. Two weeks later he contacted a Miss Levy in charge of Fenthal's lease operations and asked for his old job back. He told her he had not returned at the end of his vacation because he had bought some liquor for minors and had gotten into trouble. He was re-employed to work for Fenthal in Westchester and was referred to the Wanamaker personnel department there. Miss Levy...