The Fourth Department, over an extensive dissent, determined plaintiffs’ negligent hiring/retention cause of action against the city and city police department was properly dismissed. The action stemmed from incidents of sexual abuse by a police officer (O’Shei). It was alleged the officer should not have been retained after suffering brain injury:
Plaintiffs contend that the City defendants failed to do an appropriate evaluation of O’Shei’s neuropsychological status after the second motor vehicle accident. Recovery on a negligent retention theory “requires a showing that the employer was on notice of the relevant tortious propensit[y] of the wrongdoing employee” … , i.e., “that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … . Thus, contrary to plaintiffs’ contention, the City defendants were under no common-law duty to institute specific procedures for supervising or retaining O’Shei inasmuch as they did not know of facts that would lead a reasonably prudent person to investigate the employee … .
* * * …[T]his is a retention case, and it is well settled that the common-law duty for retention does not require as high a degree of care as does hiring … . Pater v City of Buffalo, 2016 NY Slip Op 05462, 4th Dept 7-8-16
NEGLIGENCE (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/EMPLOYMENT LAW (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/MUNICIPAL LAW (POLICE OFFICERS, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)/NEGLIGENT RETENTION (EMPLOYMENT LAW, NEGLIGENT RETENTION CAUSE OF ACTION PROPERLY DISMISSED)