85 A.D.3d 1098
N.Y. App. Div.2011Background
- Petitioner Kenneth Entler sued for damages including personal injuries to his infant son, a Boy Scout associated with the Suffolk County Council, BSA, and related entities.
- Complaint alleged sexual assaults by Eric Koch during a trip to Indiana; Koch was supervised by the Suffolk County Council, with Koch’s father Robert Koch as Commissioner overseeing the Council.
- Actions included multiple negligence theories against Koch and the BSA, with punitive damages requested against both.
- Koch and the BSA moved for summary judgment; the Supreme Court denied most relief, but granted some aspects of Koch’s and the BSA’s motions.
- On appeal, the appellate court reversed in part, granting summary judgment to Koch on several causes and dismissing punitive damages against Koch and the BSA.
- Key question whether Koch’s status as a volunteer and the BSA’s agency/Control shielded them from liability under federal and New York law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Koch is immune under the Federal Volunteer Protection Act. | Entler contends no immunity due to alleged misconduct. | Koch asserts protection by acting within scope and no willful misconduct. | Koch granted immunity; summary judgment for dismissal of multiple claims affirmed. |
| Whether the infant’s negligent-infliction-of-emotional-distress claim survives against Koch and the BSA. | Plaintiff asserts viable NIED claim under theories of supervision and control. | Koch/BSA show lack of duty or breach; lack triable issue. | NIED claim should be dismissed; no triable issue. |
| Whether the BSA is liable for negligent hiring/retention. | BSA employed/retained individuals with conduct foreseeably causing injury. | BSA did not hire/retain the employees and lacked knowledge of misconduct. | BSA’s prima facie showing of no liability; plaintiff failed to raise triable issue. |
| Whether the BSA can be vicariously liable for Suffolk Council’s employees. | Agency/undertaking to care for the infant could impose liability. | No agency/control relationship; no duty undertaken by BSA. | No vicarious liability established; Dismissed. |
| Whether punitive damages against Koch and the BSA were properly maintained. | Punitive damages grounded in recklessness/intentional misconduct. | Punitive damages parasitic on underlying torts; dismissed if tort claims fail. | Punitive damages should have been dismissed. |
Key Cases Cited
- Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159 (1997) (negligence liability standards; duty and breach considerations)
- Shor v. Touch-N-Go Farms, Inc., 83 A.D.3d 927 (2011) (foreseeability and scope of apparent agency control)
- Doe v. Rohan, 17 A.D.3d 509 (2005) (duty/knowledge of propensity considerations)
- Alvarez v. Prospect Hosp., 68 N.Y.2d 325 (1986) (triable issues standard for opposing summary judgment)
- O’Lear v. Boy Scouts of Am., 33 A.D.3d 685 (2006) (agency/control scrutinized in liability context)
- Pitkewicz v. Boy Scouts of Am.—Suffolk County Council, 261 A.D.2d 462 (1999) (agency/independence of umbrella organization)
- Bendig v. Bethpage Union Free School Dist., 74 A.D.3d 1263 (2010) (negligent emotional distress standards)
- Hecht v. Kaplan, 221 A.D.2d 100 (1996) (emotional distress and causation standards)
- Rocanova v Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603 (1994) (punitive damages parasitic to underlying tort claim)
- Brualdi v IBERIA, Lineas Aereas de España, S.A., 79 A.D.3d 959 (2010) (punitive damages standard and appellate review)