Trott v. Merit Dept. Store

• Decision Date: 31 January 1985
• Citation: 106 A.D.2d 158,484 N.Y.S.2d 827
• Parties: Charles TROTT, Jr., Plaintiff-Appellant, v. MERIT DEPARTMENT STORE, located at Hudson Plaza, and Gary L. Bashor, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 827

484 N.Y.S.2d 827

106 A.D.2d 158

Charles TROTT, Jr., Plaintiff-Appellant, v. MERIT DEPARTMENT STORE, located at Hudson Plaza, and Gary L.

Bashor, Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Jan. 31, 1985.

Martin S. Rothman, New York City, of counsel (Richard Godosky and Alyne I. Diamond, New York City, with him on the brief; Weiss, Molod, Berkowitz & Godosky and Seligson, Rothman & Rothman, New York City, attorneys), for defendant-respondent Merit.

Michael W. Kirshon, Poughkeepsie, of counsel (Perry Satz, P.C., Poughkeepsie, attorney), for defendant-respondent Bashor.

Terry D. Horner, Poughkeepsie, of counsel (Myra I. Packman, Poughkeepsie, on the brief; Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie, attorneys), for plaintiff-appellant.

Before SANDLER, J.P., and ASCH, FEIN, LYNCH and MILONAS, JJ.

ASCH, Justice.

It is essentially undisputed that on December 14, 1976, at approximately 9:00 p.m., defendant Bashor, a security guard employed by defendant Merit, observed plaintiff stealing property from a woman in the shopping mall. He chased the plaintiff, shouted warnings, fired once up in the air, shouted another warning and then discharged his shotgun to the ground, hitting plaintiff in the back. Plaintiff has allegedly been rendered a paraplegic as a result of the injuries he sustained.

Plaintiff commenced this action against Bashor and Merit by service of a summons on or about December 19, 1977, and service of a verified complaint on or about January 31, 1978, which contained two causes of action. The first alleged that on December 14, 1976, Bashor "negligently assaulted" plaintiff while acting within the scope of his authority as an employee of Merit. The second alleged that defendant maliciously assaulted plaintiff.

After answering, Merit moved for leave to amend its answer to include a statute of limitations defense to the action. Special Term granted this motion and "in the interestof justice" granted plaintiff leave to amend his complaint. On August 20, 1982, plaintiff served an amended complaint adding a third cause of action against defendant Merit for negligently hiring and retaining Bashor because of prior police and employment records which allegedly indicated violent tendencies. Both defendants served amended answers asserting a statute of limitations defense to the action. After the second cause of action in the amended complaint had been dismissed as against Bashor on statute of limitations grounds, both defendants moved for dismissal of the complaint on the same grounds. In an order dated May 3, 1983, Special Term denied defendant Merit's motion to dismiss the complaint but granted defendant Bashor's cross-motion to dismiss. Upon reargument, Special Term reiterated that the entire complaint was dismissed as to defendant Bashor and dismissed the first two causes of action against Merit. The appeal herein is from this order.

Special Term properly treated plaintiff's first cause of action for "negligent assault" as an assault, governed by the one-year statute of limitations (CPLR 215) and not the three-year negligence statute of limitations (CPLR 214).

Plaintiff asserts that the circumstances present a question of fact whether Bashor's actions constituted intentional conduct or negligent behavior and further, that Bashor did not act with the requisite intent for assault since he fired at the ground. However, it has been said: "There is, properly speaking, no such thing as a negligent assault. But the intent need not necessarily be to inflict physical injury, and it is enough that there is an intent to arouse apprehension. Thus it is an assault to fire a gun, though not aimed at the plaintiff, for the purpose of frightening the plaintiff ..." (Prosser and Keeton, Torts, 5th ed., § 10, p 46).

The Restatement of the Law, Torts 2d, § 16, states in pertinent part at pages 27-28:

"Character of Intent Necessary

"(1) If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm." (emphasis added).

Thus, in an action to recover damages for assault founded on bodily contact, the plaintiff is not required to show defendant intended physically to injure him, nor that he intended to cause specific injuries resulting from the contact (Masters v. Becker, 22 A.D.2d 118, 254 N.Y.S.2d 633).

The allegations of the complaint do not even assert a cause of action for negligence upon the facts herein....