New York State Found Not Liable For Actions of Off Duty Corrections Officer Who Shot Man In Altercation
In its recent decision in Wood v State of New York, the Appellate Division, Second Department upheld the Court of Claims decision to grant summary judgment dismissing a claim of wrongful death against the State of New York, as the employer of an off duty New York State Corrections Officer. New York State was sued in the Court of Claims by the Administratrix of the Estate of Chris Anthony Kenner, who died after being shot while in an altercation with Emilio Maldonado. The Court found that because Maldonado was not acting as an employee of the State of New York at the time of the incident, the State of New York could not be held responsible and the court granted summary judgment in favor of the State.
Employers may be held vicariously liable for the acts of their employees under a theory of law called the doctrine of respondeat superior. The doctrine of respondeat superior makes employers liable for acts committed by employees only when the act is made within the scope of employment. To be considered within the scope of employment, the act must be performed while the employee is engaged in doing business for the employer or activities necessary or incidental to the employers business.
For example if a delivery driver were to hit another car on his way to make a delivery the delivery company who employed the driver could be held responsible for the accident. An employer is not responsible if the employee is acting individually, unrelated to the furtherance of the employer's business. Therefore, if the delivery driver took a detour and got in a fight with a relative the employer would not be responsible for the fight, because it would not be a foreseeable consequence of employing the driver or necessary to the driver carrying out his responsibilities.
In this case Maldonado, an off duty New York State Corrections Officer, was driving his own vehicle accompanied by family members when he got into an argument with Chris Anthony Kenner and his brother. At the time of the incident Maldonado was carrying a personal firearm and his badge. At his deposition Maldonado testified that Kenner and his brother had kicked and punched him through the open window of his car, and that when he saw Kenner reaching towards his waistband he drew his weapon. He then testified that Kenner's brother kicked the weapon causing it to discharge killing Kenner.
Maldonado also testified in a related criminal proceeding that he had intended to "cuff" Kenner and his brother and place them under arrest. However, because he never took any affirmative steps to arrest or detain Kenner and his brother, nor did he attempt to stop them when they fled the scene, the Court found that Maldonado was not acting within the scope of his employment when he shot Kenner. The plaintiffs had the burden of proving that there was a triable issue of fact that Maldonado was acting within the scope of his employment. In the Court's opinion, the plaintiffs failed to do this.
Had Maldonado arrested Kenner's brother or ordered the pair to stop while identifying himself as a peace officer there may have been a question as to whether Maldonado's actions were within the scope of his employment. However, because Maldonado was not working at the time of the incident; was driving his own personal vehicle accompanied by family members; was carrying his own privately registered firearm; and did not make any attempt to arrest or detain either assailant, the Court found that he was not acting as a peace officer but in a private capacity. Therefore, the State of New York, as his employer, cannot be held responsible for his actions.