Negligent hiring, retention, supervision and training claims against NYCDOC

        City liability for negligent hiring, screening, retention, supervision and training turns on a number of factors. Of course, under New York State law, if the employee was acting in the scope of employment then the State claim generally will not survive. As noted in Martinez v. County of Suffolk, 999 F. Supp. 2d 424 (Spatt, J. EDNY, 2014):

Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training.” Talavera v. Arbit, 18 A.D.3d 738, 795 N.Y.S.2d 708 (2d Dep’t 2005). “This is because if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training.” Karoon v. New York City Transit Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27, 29 (1st Dep’t 1997) (emphasis added).”

However, a jury question is raised when the negligence claim is predicated upon failures of the NYC Department of Correction (“NYCDOC”)  to have had proper investigations and procedures to protect the Plaintiff from the named defendant correction officers.

If the City had proper investigations and procedures to protect the Plaintiff, the named correction officers would not have been hired in the first instance and, given their histories should not have been retained; likewise, the negligent training is predicated upon failures of the NYCDOC. Had the named correction officers been properly trained by the NYCDOC the Plaintiff would not have been injured by the intentional torts of the individually named defendants. Indeed, the theory in Karoon, supra, is not based upon a theory of the employee acting intentionally, but of employee negligence; in such a case, due to respondeat superior the negligence of the employer is irrelevant. Here, by contrast, the employer is acting intentionally and the intentional torts are caused by the independent negligence of the City.

By asserting that the individual correction officers acted within the scope of their employment, the City does not concede that correction officers are permitted to batter or to use excessive force upon detainees. Rather, the City’s position is that the correction officers either did not batter the Plaintiff or, that the force used was justifiable; in this regard, it appears to be that the City’s position is that the correction officers acted within the scope of their employment.  While a jury finding that there was battery or excessive force obligates the City to pay under New York State principles of respondeat superior, such a verdict does not equate with an admission by the City that battery or excessive force are acts within the scope of employment.

Furthermore, negligence is a jury question where, as here, there are failures to comply with mandatory rules of the NYCDOC (such as the failure to have immediately responded to the medical emergency of Plaintiff) See, Lubecki v. New York, 304 AD2d 224, 758 NYS2d 610 (1st Dept. 20003); Wyatt v. State, 176 AD574, 575 NYS2d 31 (1st Dept 2007); it also arises from the institutional custom or practice as alleged. See, Hunt v. State, 36 AD3d 511, 828 NYS2d 355 (1st Dept. 2007). Courts in New York have long recognized such claims. See, e.g., Haddock v. City of New York, 75 N.Y.2d 478, 553 N.E.2d 987, 554 N.Y.S.2d 439 (1990) (City could be held liable for negligently hiring a parks department employee who raped a child where employee had a history of violent offenses and, in hiring the employee, City failed to comply with its own hiring and screening procedures).

There are three elements of a negligent hiring claim. First, the employee must be unfit for employment. This determination is based on the nature of the job and the likelihood that the hiring of an unfit employee will cause harm to others. Second, the employer must have either actual or constructive knowledge of the employee’s unfitness. An employer may be held to possess constructive knowledge of the employee’s unfitness where it would have been disclosed by a reasonable inquiry or investigation. The third element of a negligent hiring claim is that the employer’s hiring of the unfit employee must be the cause of the third party’s injury.

The facts, as demonstrated supra establish that the claim for negligent hiring should be submitted to the jury because as shown by governmental reports submitted by Plaintiff in his Statement of Facts and Disputed Facts pursuant to Rule 56.1, there has been a decade’s long failure to properly investigate correction officer applicants prior to hire by the City of New York.

Of course, the long established principle under New York State negligence law is that the municipality owes a duty of care to protect the health and safety of prisoners. See, Sanchez v. State, 99 NY2d 247, 754 NYS2d 621, 784 NE2d 675 (2002)(opinion by Chief Judge Judith Kaye).

The claim of Negligent hiring or retention should go to the jury as there is a question of fact regarding whether the defendant City of New York used reasonable care in the employment, training and supervision of its employees to find out whether they were competent to do their work without danger or harm to others. As New York Pattern Jury Instruction PJI 2:240 states:

“The duty of reasonable care has two aspects. An employer fails in this duty where it knows that an employee (is incompetent, has vicious propensities, has a bad disposition, is given to horseplay) and the employer fails to use reasonable care to correct or remove the employee. An employer also fails in the duty of reasonable care when it knows of facts that would lead a reasonably prudent person to conduct an investigation which could have uncovered the information about the employee and fails to do so.”

As the Comment to PJI 2:240, at p. 698 notes:

“The negligence of an employer under theories of negligent hiring and negligent retention is premised upon its having placed an employee in a position to cause foreseeable harm that the injured party most probably would have been spared had the employer used reasonable care in making its decision regarding the hiring and retention of the employee, Sheila v. Povich, 11 AD3d 120, 781 NYS2d 342 (1st Dept. 2004).”

The facts presented by the Plaintiff present allegations in support of his First Cause of Action for Negligent Hiring, Screening, Retention and Training. It is abundantly clear that the Officers conduct prior to the incident was due to negligence in training, supervision and indeed retention; and, that Department of Correction of the City of New York hiring process was utterly deficient.

Finally, in the context of a Section 1983 claim, the question of the sufficiency of a claim for negligent hiring was recently addressed in Jackson v. City of New York, 939 F. Supp. 2d 219 (EDNY 2013)

To prevail on a claim for negligent hiring, training, supervision, or retention, a plaintiff must prove that a municipality’s failure to properly train, hire, retain, or supervise its police officers in a relevant respect evidences a deliberate indifference to the rights of its inhabitants.” Henry-Lee v. City of New York, 746 F.Supp.2d 546, 566 (S.D.N.Y. 2010) (Chin, J.) (quoting Jackson v. City of New York, 192 A.D.2d 641, 596 N.Y.S.2d 457, 458 (N.Y.App.Div. 2d Dep’t 1993) (internal quotation marks omitted)); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (holding inadequacy of police training may serve as basis for § 1983 liability only where failure to train amounts to deliberate indifference to rights of persons with whom police come in contact).

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