You are here: / Battery
,

DEFENDANT HOSPITAL DISCHARGED A PATIENT WITH A HISTORY OF SCHIZOPHRENIA BUT NO HISTORY OF THREATENING OR ASSAULTING PEOPLE; THE PATIENT ASSAULTED PLAINTIFF, THE CAB DRIVER PAID BY THE HOSPITAL TO TAKE THE PATIENT HOME; THE HOSPITAL DID NOT OWE A DUTY OF CARE TO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not owe a duty of care to the cab driver injured (assaulted) by a patient (Barrio) who was just released, despite the fact that the cab fare was paid by the hospital:

… [T]he defendant Francis Barrios was taken by ambulance to the emergency department of the defendant John T. Mather Memorial Hospital (hereinafter the hospital). Barrios, who had a history of schizophrenia, complained of anxiety, tremors, and blurry vision. The hospital records indicated that Barrios did not have a history of threatening or attempting to hurt others, or of actually hurting others, and that Barrios did not display any signs of violent behavior. After consultation with the psychiatrist on call, it was determined that Barrios should be discharged and should seek outpatient treatment. * * *

“The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach was a proximate cause of the plaintiff’s injury” … . “Without a duty running directly to the injured person, there can be no liability” … . “Generally, a defendant has no duty to control the conduct of third persons so as to prevent them from harming others” … . “A duty may arise, however, where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others” … .

Here, the plaintiffs failed to establish, prima facie, that the hospital owed the injured plaintiff a duty. There is no evidence that the hospital had sufficient authority and ability to control Barrios’s actions after he was discharged and left the hospital … . The hospital’s decision to pay for a taxi service for Barrios after his discharge did not make the hospital the injured plaintiff’s employer, make the hospital an agent for Barrios, or otherwise create a special duty … . Further, absent evidence in the record that the hospital knew or should have known that Barrios posed a threat to the injured plaintiff, she was a member of the general public and not of a class of people to whom the hospital owed a duty … . Melio v John T. Mather Mem. Hosp., 2025 NY Slip Op 03562, Second Dept 6-11-25

Practice Point: Here a discharged patient with schizophrenia assaulted the cab driver paid by the hospital to take the patent home. The hospital did not owe a duty of care to the cab driver.

 

, ,

DEFENDANT DINER’S SECURITY GUARD KNOCKED PLAINTIFF TO THE GROUND AND CHOKED HIM; WHETHER THE DINER DEFENDANTS ARE VICARIOUSLY LIABLE DEPENDED UPON WHETHER THE SECURITY GUARD WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ASSAULT; THE FAILURE TO PROVIDE THE JURY WITH AN INTERROGATORY ON THE SCOPE-OF-EMPLOYMENT QUESTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing the denial of defendants’ motion to set aside the verdict and ordering a new trial, held the jury should have been instructed to determine whether the security guard (Vetell) who assaulted plaintiff was acting within the scope of his employment at the time of the assault. Apparently plaintiff left the defendant diner to get money at an ATM to pay the bill. When he retuned to the diner, the security guard knocked him to the ground and choked him:

… Supreme Court erred in denying the appellants’ counsel’s request to ask the jury to determine whether Vetell was acting within the scope of his employment when he attacked the plaintiff. The interrogatories that were given to the jury made it possible for the jury to find the appellants liable for Vetell’s acts based only on his being a special employee without determining that he was acting within the scope of his employment when he attacked the plaintiff. Since a determination that Vetell was acting within the scope of his employment is a necessary element to render the appellants vicariously liable for his acts, the court should have added the requested interrogatory to the verdict sheet … . Eaton v Fiotos, 2025 NY Slip Op 03553, Second Dept 6-10-25

Practice Point: Whether an employer is vicariously liable for the actions of an employee depends upon whether the employee’s conduct was within the scope of employment. Here the failure to so instruct the jury required a new trial.​

 

, , , ,

THE 18 USC 1983 CAUSE OF ACTION AGAINST THE POLICE AND MUNICIPALITY WAS PROPERLY DISMISSED BECAUSE THE DOCTRINE OF REPONDEAT SUPERIOR DOES NOT APPLY AND THERE WAS NO EVIDENCE THE POLICE WERE ACTING PURSUANT TO A MUNICIPAL CUSTOM OR POLICY WHEN THEY ALLEGEDLY PUSHED PLAINTIFF TO THE GROUND, HANDCUFFED HER AND TASED HER; HOWEVER THE BATTERY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the battery cause of action in this Civil Rights Law (18 USC 1983) case should not have been dismissed. The lawsuit stemmed from the police allegedly pushing plaintiff to the ground, striking her, handcuffing her and tasing her. The 18 USC 1983 cause of action was properly dismissed because plaintiff did not prove the police were acting pursuant to a municipal custom or policy. However, the battery cause of action should not have been dismissed:

However … a jury could rationally conclude that the defendants are liable for battery. “‘To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature'” … . “[A]n assault and battery cause of action may be based on contact during an unlawful arrest” … .

At trial, the plaintiff presented evidence from which the jury could rationally conclude that the detention was not privileged under Mental Hygiene Law § 9.41, and the trial evidence showed that the officers engaged in contact with the plaintiff during the allegedly unlawful detention. The trial evidence, viewed in the light most favorable to the plaintiff, was sufficient to allow the jury to rationally conclude that the two officers were acting within the scope of their official duties at the relevant time. Accordingly, the defendants were not entitled to dismissal of the cause of action alleging battery … . Mac v County of Suffolk, 2024 NY Slip Op 06330, Second Dept 12-18-24

Practice Point: A municipality cannot be held liable pursuant to 18 USC 1983 for the actions of police officers under a respondeat superior theory. The plaintiff must show the police were acting pursuant to a municipal custom or policy.

Practice Point: A municipality may be liable for battery committed by police officers acting within the scope of their employment.

 

, ,

TENANT’S ATTACK ON PLAINTIFF WAS NOT FORESEEABLE; THEREFORE THE LANDLORD WAS NOT LIABLE IN NEGLIGENCE FOR FAILING TO EVICT THE TENANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined a tenant’s (Girard’s) attack on plaintiff was not foreseeable. Therefore the negligence action against the landlord for failing to evict Girard was dismissed:

Defendant demonstrated … that it was not liable for third-party defendant Girard’s attack on plaintiff because it was not reasonably foreseeable … . No evidence was presented that Girard had engaged in criminal conduct prior to the attack or that he was violent, had a propensity toward violence, or had threatened any tenants of the building. Inconsiderate behavior, such as playing loud music at all hours, engaging in loud arguments with his sister in the apartment, and banging on the apartment walls, is insufficient to have placed defendant on notice that Girard would stab plaintiff in response to plaintiff’s noise complaints … . While it was conceivable that the dispute might escalate into violence, “conceivability is not the equivalent of foreseeability” … . Plaintiff failed to present evidence sufficient to raise a triable issue of fact concerning whether defendant was negligent in not taking steps to evict Girard prior to the attack…. . Goris v New York City Hous. Auth., 2024 NY Slip Op 02661, First Dept 5-14-24

Practice Point: Here the tenant who attacked plaintiff, although loud and argumentative, had never been violent. Therefore the tenant’s attack was not foreseeable and the landlord could not be held liable in negligence for failing to evict the tenant.

 

, , , , ,

RECORDS ASSOCIATED WITH AN ARREST AND PROSECUTION AND PRISON MEDICAL RECORDS ALLEGEDLY RELATING TO AN ATTACK BY CORRECTION OFFICERS WERE NOT SUFFICIENT TO DEMONSTRATE THE RESPONDENT CITY HAD ACTUAL TIMELY NOTICE OF THE ASSOCIATED CLAIMS; LEAVE TO FILE LATE NOTICES OF CLAIM SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the Appellate Division, over a two-judge dissent in one case (Jaime) and concurrences in the other (Orozco), determined that the petitions for leave to file a late notice of claim, brought by the same attorney for the two petitioners, should not have been granted. Orozco alleged false arrest and malicious prosecution and Jaime alleged an attack by corrections officers. In neither case was the petition supported by an affidavit from the petitioner. The records associated with Orozco’s arrest and prosecution did not prove the respondent (NYC) had timely actual knowledge of the claim. Because Jaime did not file a grievance about the alleged attack by correction officers and did not provide an affidavit in support of the petition for leave to file late notice, there was no proof the City had actual timely knowledge of the claim:

Insofar as Orozco argued that the City would not be substantially prejudiced by the late filing because it acquired timely actual knowledge, Orozco’s failure to establish actual knowledge is fatal. Orozco’s further argument—that the City would not be substantially prejudiced because it will have to expend resources to defend against his 42 USC § 1983 claims—misapprehends the purpose served by the notice of claim requirement. … [T]he purpose is to afford the municipality the opportunity to investigate the claims and preserve evidence … , not simply to shield municipalities from litigation costs. Moreover, this argument understates the advantage of facing only a section 1983 claim that can be defended on qualified immunity grounds … , as opposed to facing that claim plus additional state law claims. * * *

The City conceded at oral argument that an incarcerated person might not file a grievance concerning a violent attack by a correction officer for fear of reprisal, a fear that may constitute a reasonable excuse for late service of a notice of claim. It would, however, be entirely speculative for us to consider that possibility here given the absence of any relevant evidence. Were Jaime in fact operating under such a fear, he could have submitted an affidavit attesting to the fact. That affidavit would have constituted evidence supporting an arguably reasonable excuse, which might provide at least some support for a court’s discretionary determination to allow late service.

Neither the allegation that Jaime sustained injuries in the attacks for which he sought medical attention in the infirmary, nor the allegation that the DOC created or maintained records relating to those injuries, establishes that the City acquired actual knowledge of the essential facts constituting the claim … . Matter of Jaime v City of New York, 2024 NY Slip Op 01581, CtApp 3-21-24

Practice Point: In these two cases the evidence of an arrest and prosecution in one case and an attack by correction officers in the other was insufficient to demonstrate the respondent City had actual timely knowledge of the facts underlying the claims against the City. The petitioners should not have been granted leave to file late notices of claim.

 

, ,

PLAINTIFF ALLEGED ASSAULT AND BATTERY BY POLICE OFFICERS; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE ASSAULT AND BATTERY IS INTENTIONAL, NOT NEGLIGENT, CONDUCT; THE IMMUNITY AFFORDED POLICE OFFICERS RE: ASSAULT AND BATTERY EXTENDS ONLY TO “OBJECTIVELY REASONABLE” CONDUCT; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE POLICE CONDUCT WAS OBJECTIVELY REASONABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the county based upon the alleged assault and battery of plaintiff by police officers should have been dismissed. Assault and battery stem from intentional, not negligent, acts. The assault and battery allegations properly survived summary judgment, however:

… [T]he defendants established their prima facie entitlement to summary judgment dismissing the plaintiff’s cause of action alleging negligence by submitting, inter alia, a transcript of the plaintiff’s testimony at a General Municipal Law § 50-h hearing, in which she testified that a police officer grabbed her, picked her up, and threw her to the ground, causing her injuries. Where, as here, intentional offensive conduct has been established, the actor may be found liable for assault or battery, but not negligence … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether any of her alleged injuries were caused by unintentional conduct … . Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging negligence.

However, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging assault and battery. Police officers are entitled to qualified immunity on state law claims if their actions are “objectively reasonable” … . The determination of whether a use of force was objectively reasonable is an “intensely factual” question “best left for a jury to decide” … . Here, the defendants’ submissions failed to eliminate triable issues of fact as to whether the police officer’s actions were objectively reasonable under the circumstances. Pleva v County of Suffolk, 2023 NY Slip Op 06394, Second Dept 12-13-23

Practice Point: Allegations of intentional conduct, here assault and battery, will not support a negligence cause of action.

Practice Point: Police officers have immunity which will protect them from allegations of assault and battery, but only if the police conduct was “objectively reasonable” (a question of fact).

 

, ,

ALTHOUGH THE STATE HAS A DUTY TO PROTECT INMATES FROM ASSAULTS BY OTHER INMATES, THAT DUTY DOES NOT EXTEND TO UNFORESEEABLE ATTACKS (SECOND DEPT).

The Second Department, reversing the Court of Claims. determined the state’s motion for summary judgment in this inmate-on-inmate assault case should have been granted. The complaint alleged the assault occurred because of the state’s negligent supervision of the inmates in a block yard:

“Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” … . “That duty does not, however, render the State an insurer of inmate safety,” and negligence cannot be established by the “mere occurrence of an inmate assault” … . Rather, the scope of the State’s duty is “limited to providing reasonable care to protect inmates from risks of harm that are reasonably foreseeable, i.e., those that [the State] knew or should have known” …. .

Here, in support of its motion, the State established its prima facie entitlement to judgment as a matter of law dismissing the claim by demonstrating that the alleged assault upon the claimant was not reasonably foreseeable. The State’s submissions demonstrated that the claimant did not know his assailant, who unexpectedly engaged in a “surprise attack” against the claimant. Further, the State proffered evidence that it undertook security measures, including requiring every inmate entering the B Block yard to “go through a [m]agnetometer,” as well as subjecting inmates to random “pat frisks” and searches. Contrary to the determination of the Court of Claims, the State’s failure to employ the use of a particular magnetometer did not present a triable issue of fact … . Armwood v State of New York, 2023 NY Slip Op 04465, Second Dept 8-30-23

Practice Point: Here the state demonstrated it took adequate steps to prevent inmates from bringing weapons into the block yard and the attack on claimant with a scalpel was not reasonably foreseeable. The state’s motion for summary judgment in this inmate-on-inmate assault case should have been granted.

 

, , , ,

PLAINTIFF NURSE WAS ASSAULTED BY A PATIENT IN DEFENDANT’S HOSPITAL; SHE WAS ENTITLED TO DISCOVERY OF ANY NON-PRIVILEGED INFORMATION ABOUT THE PATIENT’S AGGRESSIVE BEHAVIOR IN HIS MEDICAL RECORDS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to an in camera review her assailant’s (Downing’s) medical records to discovery of any non-privileged references to his aggressive behavior. Plaintiff was a nurse assigned to work in defendant’s hospital when she was assaulted by defendant patient:

Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged (…see CPLR 4504; Mental Hygiene Law § 33.13[c][1] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .

Here, the plaintiff seeks information as to any prior aggressive or violent acts by Downing. Information of a nonmedical nature regarding prior aggressive or violent acts is not privileged … . Accordingly, we remit the matter to the Supreme Court, Queens County, for an in camera review of the subject hospital records, to determine which records contain nonprivileged information that is subject to disclosure, and thereafter disclosure of such records … . Gooden v New York City Health & Hosps. Corp., 2023 NY Slip Op 02867, Second Dept 5-31-23

Practice Point: Here a nurse injured by a hospital patient was entitled to any non-privileged information about the patient’s aggressive behavior in the patient’s medical records. An in camera review of the records was ordered.

 

, ,

THE PERSON WHO ASSAULTED PLAINTIFF WAS THE OWNER OF THE LAW FIRM PLAINTIFF WORKED FOR; PLAINTIFF COULD RECOVER WORKERS’ COMPENSATION BENEFITS FROM THE LAW FIRM AND DAMAGES FOR ASSAULT AND BATTERY FROM THE OWNER, WHO WAS A COEMPLOYEE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff could recover for assault and battery against a coemployee (Levoritz) even though plaintiff had been awarded Workers’ Compensation benefits from his employer for the same assault and battery. Plaintiff was employed by defendant law firm at the time of the alleged assault and battery and the law firm was owned by Levortiz:

The Supreme Court, however, erred in granting Levoritz’s motion for summary judgment dismissing the complaint insofar as asserted against him. Contrary to Levoritz’s contention, Workers’ Compensation Law § 29 does not bar an employee who has accepted workers’ compensation benefits from suing a coemployee who has committed an intentional assault against him or her … . Additionally, Levoritz failed to establish, prima facie, that he was acting within the scope of his employment at the time of the incident, and was not engaged in a willful or intentional tort … .

The Supreme Court should have granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability on the cause of action to recover damages for assault and battery insofar as asserted against Levoritz. The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action to recover damages for assault and battery by showing, through the submission of his affidavit, that there was bodily contact, that the contact was offensive, that Levoritz intended to make the contact without the plaintiff’s consent, and that Levoritz placed the plaintiff in “imminent apprehension of harmful contact” … . In opposition, Levoritz failed to raise a triable issue of fact. Tarasiuk v Levoritz, 2023 NY Slip Op 02698, Second Dept 5-17-23

Practice Point: Here the person who assaulted plaintiff was the owner of the law firm plaintiff worked for. Plaintiff could recover Workers’ Compensation benefits from the law firm and damages from the owner of the firm, who was plaintiff’s coemployee.

 

, ,

THE ASSAULT AND BATTERY OF CLAIMANT-INMATE BY CORRECTIONS OFFICERS OCCURRED WITHIN THE SCOPE OF THE OFFICERS’ EMPLOYMENT AND WAS REASONABLY FORESEEABLE; THEREFORE THE STATE, AS THE OFFICERS’ EMPLOYER, COULD BE LIABLE FOR THE ASSAULT AND BATTERY UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR (THIRD DEPT).

The Third Department, reversing the Court of Claims, determined the alleged assault and battery by corrections officers occurred within the scope of the officers’ employment at the correctional facility and was reasonably foreseeable. Therefore the state could be liable under the doctrine of respondeat superior. The Court of Claims had held the assault was conduct outside the scope of the officers’ employment and the state therefore was not liable:

… [W]hile it is our view that the correction officers’ use of force was excessive, the ensuing investigations of the incident effectively condoned the conduct of the correction officers and tacitly found them to be engaged in actions that were within the scope of employment … . To this end, it was claimant that was found guilty of misbehavior for assaulting prison staff, and prison officials determined that the use of force was “consistent with Departmental Rules[,] and [that] the injuries received, both by staff and the involved [incarcerated individual] are accounted for.” This evidence reflects that prison officials determined that the conduct of the correction officers was appropriate under the circumstances and fell within the scope of employment. Finally, in light of claimant’s … report accusing Poupore [one of the corrections officers involved] of inappropriate contact with claimant, which preceded the incident, and Poupore’s knowledge of same, it was clearly foreseeable that a tense encounter could result during further interactions between Poupore and claimant in the context of normal employment-related activities in the prison … . Altogether, we find that the foregoing establishes by a preponderance of the evidence that the assault occurred within the scope of the correction officers’ employment as a reasonably foreseeable consequence of an employment-related activity and that the verdict in this case must be reversed on the facts and the law. Galloway v State of New York, 2023 NY Slip Op 00137, Third Dept 1-12-23

Practice Point: The assault and battery of claimant-inmate was deemed to be within the scope of the corrections officers’ employment and foreseeable. Therefore the state, as the officers’ employer, could be liable under the doctrine of respondeat superior.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy