State Not Liable For Vicious Assault By Guards on Inmate

Rivera v State of New York, 2019 NY Slip Op 08521 (Court of Appeals, NY) (Decided on November 25, 2019)

Edited by Lawrence N. Rogak

New York's top court has ruled that the State of New York cannot be held vicariously liable for a savage beating administered to a prison inmate by three guards, because the nature of the attack was outside the scope of their employment.

In January 2010, Rivera was an inmate at a State prison. One morning when claimant entered the prison mess hall, correction officer Michael Wehby mocked his medically-issued protective helmet, which he was required to wear due to a seizure disorder. Rivera asked Wehby not to make fun of his helmet, fearing harassment by other inmates, and walked towards the food serving line. Wehby called Rivera back to the doorway of the mess hall. When Rivera obliged, Wehby grabbed Rivera's jacket, pulled him outside the mess hall and began punching him on the face and head. Rivera was forced to his knees while Wehby hit and stomped on him, at which point two other correction officers—Officer Robert Femia and Sergeant Joseph LaTour—pushed claimant down and applied handcuffs. Wehby removed Rivera's helmet and continued the assault, yelling expletives and saying, in substance, "I hope you die." While immobilized on the floor, Rivera was punched, kneed and kicked in the head. At this juncture, Wehby struck Rivera in the head with his radio with such force that the battery became dislodged and hit the wall. Eventually, Rivera lost consciousness. During the "prolonged, brutal attack, claimant did not resist or fight back, sustaining serious injuries." When Rivera was eventually brought to the facility emergency room, medical staff were falsely told that his injuries were the result of a seizure. No mention was made that force had been used on him.

Soon after the incident, the DOCCS Inspector General's Office conducted an investigation. All three corrections officers were cited for providing false or misleading statements to the Inspector General; Wehby and LaTour were found to have engaged in the inappropriate use of force. Wehby was subsequently criminally prosecuted for the assault and pleaded guilty to official misconduct. All three correction officers lost their jobs.

The Court of Claims denied Rivera's motion for summary judgment and granted the State's cross motion for summary judgment, holding that Wehby's attack was, as a matter of law, outside the scope of employment. The court determined that, based on the undisputed facts, there was "no reasonable connection" between the assault and the duties normally performed by correction officers, deeming the attack a "substantial departure" from the normal methods of performance. Further, the court reasoned that the "abhorrent" and unprovoked attack was wholly attributable to personal motive, reflected by the lack of any plausible justification for such vicious force. The court held there was "no viable basis upon which the State of New York may be held liable" for assault and battery. The Appellate Division affirmed.

"Based on the undisputed facts, consistently presented in the parties' summary judgment papers," held the Court of Appeals, "no reasonable fact-finder could conclude that the assault constituted action taken within the scope of employment."

Under the common-law doctrine of respondeat superior, an employer—including the State—may be held vicariously liable for torts, including intentional torts, committed by employees acting within the scope of their employment. The employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. Liability attaches for the tortious acts of employees only if those acts were committed in furtherance of the employer's business and within the scope of employment. Thus, if an employee "for purposes of their own departs from the line of . . . duty so that for the time being their acts constitute an abandonment of service, the employer is not liable."

In determining whether an employee acted within the scope of employment for purposes of vicarious liability, "we consider, among other factors, the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated."

The brutal beating can be characterized neither as an "irregular" performance of duty nor a mere "disregard of instructions" — the attack was not in furtherance of any employer-related goal whatsoever, held the Court.

"Correction officers are authorized to use physical force against inmates in limited circumstances not present here, such as in self-defense or to suppress a revolt. DOCCS regulations require correction officers to exercise "the greatest caution and conservative judgment" in determining whether physical force against an inmate is necessary. To be sure, correction officers at times use excessive force. Such conduct will not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct. Under our multi-factored common-law test for determining respondeat superior liability, an employee's deviation from directions or governing standards is only one consideration in the analysis. Here, the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law. This was a malicious attack completely divorced from the employer's interests."

Based on the uncontested facts, it is evident that claimant's injuries were not caused by actions taken within the scope of employment and thus, there were no triable issues of fact as to the State's vicarious liability for assault and battery, the Court ruled.

Summary judgment for the State of New York was affirmed. The Court did note that plaintiff had other civil options.

Lawrence N. Rogak