December 11, 2012
Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit
"John Doe 1," v Board of Educ. of Greenport Union Free Sch. Dist., 2012 NY Slip Op 07633, Appellate Division, Second Department
Parents of a student at the Greenport Union Free School District alleged that a teacher's aide employed by the school district engaged in an inappropriate sexual relationship with their child.
Among the complaints asserted against the school district and certain of its officers was a cause of action alleging that these defendants were  vicariously liable for the actions of teacher’s aide and  were liable for the negligent hiring and supervision of the aide.
The Appellate Division held that the evidentiary material submitted in support of the school district’s motion to dismiss the action as to the district and certain of its employees demonstrated that the parents did not have a cause of action against those defendants sounding in either vicarious liability or negligent hiring and supervision, explaining that all of the alleged improper acts by school aide took place off school premises and, or, outside of school hours, when the school defendants had no custody or control of the students and no duty to monitor or supervise the conduct of the school aide.
Further, said the court, the evidence demonstrated that the conduct of aide was personally motivated and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her alleged tortious acts.
As to the claim that the school district was liable for negligent hiring and supervision of the aide, the Appellate Division said that the evidence established that school district “properly investigated” the aide prior to her being hired, and that the school district had no notice of any propensity on her part to sexually assault students.
The court also noted that the parents did not allege that the school district defendants knew or had reason to know of any improper behavior by the aide nor was any nexus between aide's employment and the alleged sexual assaults, since they were separated by time, place, and the intervening independent acts of the aide.
Accordingly, ruled the Appellate Division, Supreme Court should have granted that branch of the school district's motion to dismiss the complaint insofar as asserted against the school district and its named officials.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein