NEGLIGENT HIRING, SUPERVISION, RETENTION AND TRAINING CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THE VICARIOUS LIABILITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED; IT WAS ALLEGED EMPLOYEES OF A RESIDENTIAL FACILITY BURNED A NONVERBAL, AUTISTIC RESIDENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined the vicarious liability cause of action against L & W, the employer of defendants Chavies and Edwards,  should have been dismissed, but the negligent hiring, retention, supervision and training causes of action, as well as claims for punitive damages, properly survived summary judgment. The complaint alleged plaintiff, Sandoval, a nonverbal autistic adult who lived in a residential facility operated by defendant L & W, was deliberate burned by a heated utensil (potato masher) used by either Chavies or Edwards to control plaintiff. The vicarious liability cause of action dismissed because the alleged burning of plaintiff was outside the scope of Chavies’ and Edwards’ employment:

… L&W conditions all employment offers on at least one satisfactory professional reference.

Despite this policy, L&W did not check the professional references submitted by Chavies or Edwards. Most notably, Chavies indicated on his job application that he had been “let go” from his most recent job working with intellectually disabled children. It is for the jury to determine whether L&W’s lapse in obtaining satisfactory references for both employees constitutes negligent hiring under the circumstances … .

L&W’s claim that the incident was not foreseeable is belied by its own training materials. The SCIP training materials reflect that residential staff face difficult emotional challenges in their positions, and that as a result, the potential for abuse is reasonably foreseeable. The training materials note the “Common Emotional Reactions” that staff may have including “Anger.” The training materials reference the “incidents of abuse” and seek to decrease those incidents “through increasing awareness of the definition and the causative factors of abuse.” The materials also reference the potential that staff might “lose control and strike or verbally abuse a person.” … [A]s the movant, it is L&W’s burden to establish the lack of proximate cause … . … L&W’s causation arguments are undercut by its own hiring policy, which makes an offer of employment contingent on at least one satisfactory professional reference and by the … training materials, which highlight the critical importance of “ongoing staff training” in decreasing abuse. Sandoval v Leake & Watts Servs., Inc., 2020 NY Slip Op 08017, First Dept 12-29-20