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RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT, POINTING TO GAPS IN THE OPPOSING PARTY’S PROOF WILL NOT SUPPORT SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the fact that the people engaged by defendant to paint the property were volunteers did not preclude the application of the doctrine of respondeat superior based upon a principal-agent relationship. Plaintiff was injured by a ladder when she left the building. Defendants’ motion for summary judgment should not have been granted. The court noted that pointing to gaps in the opposing party’s proof will not support summary judgment:

“Under the doctrine of respondeat superior, a principal is liable for the negligent acts committed by its agent within the scope of the agency”… , and “[a] principal-agent relationship can include a volunteer when the requisite conditions, including control and acting on another’s behalf, are shown” … . Here, defendants each failed to establish as a matter of law that the volunteers at the residence where plaintiff was injured may not be considered their servants for purposes of respondeat superior liability … , or that the duty to ensure that the work was performed safely may not fairly be imposed upon them … .

In addition, defendants cannot meet their burden on their respective summary judgment motions and cross motion based upon plaintiff’s failure to identify the volunteer(s) who caused the ladder to strike her … . “[I]n seeking summary judgment, [a] moving party must affirmatively [demonstrate] the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof’ “… . Defendants’ failure to meet their burden requires denial of the motions and cross motion, “regardless of the sufficiency of the opposing papers” … . Rozmus v Wesleyan Church of Hamburg, 2018 NY Slip Op 03261, Fourth Dept 5-4-18

​NEGLIGENCE (VICARIOUS LIABILITY, RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/RESPONDEAT SUPERIOR (NEGLIGENCE, VOLUNTEERS, RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/VICARIOUS LIABILITY (RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/AGENCY (NEGLIGENCE, RESPONDEAT SUPERIOR, VOLUNTEERS, RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT (FOURTH DEPT))/SUMMARY JUDGMENT (POINTING TO GAPS IN THE OPPOSING PARTY’S PROOF WILL NOT SUPPORT SUMMARY JUDGMENT (FOURTH DEPT))

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