169 Misc. 2d 531 | New York Court of Claims | 1996
OPINION OF THE COURT
Claimant alleges that, on June 21, 1990, his karate instructor at the State University of New York at Purchase (SUNY), Nazim Ali, assaulted claimant and caused him to sustain
In June of 1990, claimant, a full-time student at SUNY, enrolled in statistics and karate for the summer session held from June 11th until July 26th. Ali taught karate as a noncredit course. Classes were held in the gym located in the physical education building.
Claimant testified that, on June 21, 1990, Ali directed the class to do a "reverse push-up.”
Thereafter, a jury found Ali guilty of assault in the third degree, a class A misdemeanor (Penal Law § 120.00). SUNY terminated Ali’s services after the June 21, 1990 incident and paid him a prorated fee. SUNY refunded tuition to the students enrolled in Ali’s class.
Defendant does not dispute that the assault occurred. Rather the defendant argues that it is not liable for Ali’s actions because Ali was an independent contractor or, alternatively, if Ali is found to be an employee of SUNY, his actions were beyond the scope of his employment.
Defendant called Laura J. Evans, Dean of Continuing Education at SUNY for 161/2 years, to testify as to Ali’s status. Evans testified that Ali was hired as an independent contractor in the spring of 1990 and that, pursuant to the terms of that contract, Ali taught karate in the fall, spring and summer sessions of 1990. The contract was admitted into evidence. The contract, entitled "Non-Credit Continuing Education Instructional Services Agreement Form,” was signed by Ali and signed on behalf of the college by Evans. The contract provided in pertinent part:
"You shall obtain the approval of State University for the general scope and nature of the services performed hereunder.
"The relationship of the parties arising out of this agreement shall be that of independent contractor. You shall not, as the result of this agreement, be considered an employee of the State University or the State of New York, nor shall you represent that such employee relationship exists, arising out of this contract * * *
"State University shall not be required to provide you with staff, materials, supplies, office space or secretarial support.”
To receive payment under the contract, Ali had to submit a bill for services and a voucher at the conclusion of the course. Ali was paid $450 for his services. Ali was not paid out of the money from SUNY’s personnel payroll account used for employees. Rather, Ali was paid from SUNY’s expense account. SUNY did not provide Ali with any office space, secretarial assistance, health or retirement benefits, nor any other benefits which SUNY provided to its employees.
Defendant offered into evidence SUNY’s summer session catalogue of courses. The catalogue gave a description of the courses offered and was available to matriculated students and the general public. The courses were divided into two categories, "Non-Credit Courses” and "Undergraduate Credit Courses”. The courses listed under "Non-Credit Courses” "General Interest” made reference to the teacher as "Instructor,” whereas, the courses listed under the "Undergraduate Credit Courses” referred to the teacher as "Instructor, Faculty of Summer Session, SUNY.” However, there was no express statement in the catalogue indicating any distinction between "Instructor” or "Instructor, Faculty of Summer Session, SUNY.” There was also no indication as to whether the teacher was hired as a full-time faculty member / employee or whether the teacher was hired as an independent contractor to teach a single course.
As noted above, claimant argues that defendant should be held vicariously liable for Ali’s acts on the theory that Ali is an employee of SUNY. Defendant argues that it cannot be held vicariously liable because Ali is an independent contractor or, alternatively, even if Ali were an employee of SUNY, his acts were beyond the scope of his employment. The doctrine of vicarious liability imputes liability to a defendant for another person’s fault. One theory upon which the doctrine is
In the instant case, the testimony of SUNY’s dean, the express contract terms, the method of payment, and other indicia, indicate that Ali was hired as an independent contractor to perform a specific task according to his own methods and without being subject to control by SUNY except as to the result of the work (see, Matter of Ted Is Back Corp., 64 NY2d 725; see generally, 3 NY Jur 2d, Agency and Independent Contractors, § 322). However, it is arguable that, based upon the manifestations of SUNY in its summer session catalogue, claimant may have reasonably believed that Ali was an employee (see generally, 2 NY Jur 2d, Agency and Independent Contractors, §§ 84-85). In any event, this court need not resolve the issue of whether Ali was an independent contractor or an employee of SUNY because, even assuming that Ali was an employee, his conduct was beyond the scope of employment and, therefore, defendant cannot be held vicariously liable. This analysis was invoked by the Appellate Division in Curtis v City of Utica (209 AD2d 1024, 1025), where it was held that: "Assuming, arguendo, that defendant was the employer of the summer camp group leader who assaulted the infant, it may not be held liable for his intentional tort because the record establishes as a matter of law that the acts constituting that tort were wholly personal in nature, outside the scope of the counselor’s employment and not in furtherance of defendant’s business.”
The Court of Appeals recently addressed the issue of an employer’s liability for the tortious conduct of its employee in
Numerous cases have held that the employee’s intentional torts were beyond the scope of employment and that therefore the employer could not be held vicariously liable for the employee’s conduct. For example, in Mary KK. v Jack LL. (203 AD2d 840), the parent of a student commenced an action against the school district for the sexual misconduct of a teacher within the district. It was undisputed that the teacher had molested the plaintiff’s daughter on several occasions. The Appellate Division held that: "Although these acts occurred on school property during school hours, they were clearly outside the scope of the teacher’s employment as they were wholly personal in nature and certainly not done in the furtherance of the District’s business (see, Nicollette T. v Hospital for Joint Diseases/ Orthopedic Inst., 198 AD2d 54; Hall v Danforth, 172 AD2d 906). Therefore, we conclude that, as a matter of law, the doctrine of respondeat superior is inapplicable to this case” (203 AD2d, at 841).
Similarly, in Joshua S. v Casey (206 AD2d 839), the Appellate Division held that the school, the church and the diocese could not be held vicariously liable for the alleged sexual assault committed by a priest because such conduct was not within the scope of employment and cannot be said to have been in furtherance of the employer’s business (see also, Garcia v City of New York, 104 AD2d 438, affd 65 NY2d 805 [off-duty police officer’s act of shooting plaintiff was deliberate and not
In the instant case, while Ali’s acts occurred on school property and during school hours, they were clearly not in furtherance of SUNY’s business (see, Mary KK. v Jack LL., supra). SUNY did not authorize the violence and the use of force was not within any discretionary authority afforded Ali (see, Lazo v Mak’s Trading Co., supra). The assault was not undertaken within the scope of employment (see, Gibilaro v Lomax Trading Corp., supra; Moritz v Pines Hotel, 52 AD2d 1020). Rather, the tortious conduct was wholly personal in nature, without regard to his service (see, Curtis v City of Utica, supra). In summary, Ali’s acts were not within the scope of his employment; therefore, defendant cannot be held vicariously liable.
Accordingly, defendant’s trial motion to dismiss the claim upon which decision was reserved is now granted and the Chief Clerk of the court is directed to enter judgment dismissing claim No. 82582.
. All quotations are to the trial notes unless otherwise indicated.