Negligent Supervision and Retention and Respondeat Superior Causes of Action Against City Department of Education (DOE) Should Not Have Been Dismissed—Complaint Alleged Sexual Abuse of Student By Teacher

The Second Department determined the causes of action against the City of New York Department of Education (DOE) alleging negligent supervision and retention of a teacher, as well as liability based upon respondeat superior, should not have been dismissed. The complaint alleged the sexual abuse of a student by a teacher, Watts, over the course of two years. The DOE failed to demonstrate it did not have actual or constructive notice of the teacher’s propensity for sexual abuse. Although the respondeat superior theory did not apply to the teacher (who acted outside the scope of employment) other employees, who were acting within the scope of employment, may have been negligent:

“Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “The standard for determining whether the school has breached its duty is to compare the school’s supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s intentional acts, the plaintiff generally must demonstrate that the school knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . “Actual or constructive notice to the school of prior similar conduct generally is required” … . Similarly, in order to establish a cause of action based on negligent retention of an employee, “it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the moving defendants failed to establish, prima facie, that the DOE had no specific knowledge or notice of Watts’ propensity to engage in the misconduct alleged in the complaint … . * * *

The Supreme Court also should have denied that branch of the moving defendants’ motion which was for summary judgment dismissing the cause of action alleging liability based upon a theory of respondeat superior insofar as asserted against the DOE. “Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer’s business and within the scope of employment” … . Here, the DOE may not be held liable under a theory of respondeat superior for the alleged misconduct committed by Watts, as it is undisputed that those acts were not committed in furtherance of the DOE’s business and within the scope of Watts’ employment … . However, as the plaintiffs correctly contend, the complaint adequately alleged that other employees of the DOE were negligent in the performance of their respective duties, and that such negligence constituted a proximate cause of the infant plaintiff’s injuries. In this regard, the moving defendants failed to establish, prima facie, that these other employees were not acting within the scope of their employment …, that they were not negligent, or that any such negligence was not a proximate cause of the alleged injuries … . Nevaeh T. v City of New York, 2015 NY Slip Op 07642, 2nd Dept 10-21-15