McKnight v. City of Rochester, New York et al

Filing 58

DECISION & ORDER McKnight's motion seeking judgment in her favor on her claim against the City for negligent hiring, training and supervision 41 is denied, the City's cross-motion for summary judgment dismissing McKnight's claim for negligent hiring, training and supervision 46 is granted, and the claim is dismissed with prejudice. A pretrial conference will be held before the Hon. Marian W. Payson on 4/24/2015 at 2:00 PM. Signed by Hon. Marian W. Payson on 3/30/2015. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
MIRIAM MCKNIGHT,
DECISION & ORDER
Plaintiff,
11-CV-6328P
v.
CITY OF ROCHESTER, et al.,
Defendants.
_______________________________________

PRELIMINARY STATEMENT
Plaintiff Miriam McKnight has sued the City of Rochester and two of its police
officers, Gregory Vasil and Sergeant Michael Nicholls,1 alleging violations of her constitutional
rights under 42 U.S.C. § 1983 and asserting various state law claims. (Docket # 1). The claims
arise out of McKnight’s arrest from the front porch area of her home on July 3, 2010. Pursuant
to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United
States magistrate judge. (Docket # 11).
Currently pending before the Court are both parties’ motions for summary
judgment. (Docket ## 41, 46). By separate order following oral argument on the motions, the
Court granted in part and denied in part the parties’ motions pertaining to various of McKnight’s
claims, but reserved on their motions for judgment on her state law claim against the City for
negligent hiring, training and supervision. (Docket # 56). Familiarity with the facts of this case
as this Court recounted them in its December 11, 2014 bench decision is assumed.

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The complaint also asserted claims against Lieutenant Laura Grande, however the Court granted her
motion for summary judgment and dismissed the claims against her. (Docket # 56).

ANALYSIS
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In reaching this determination, the court must assess whether there are any
disputed material facts and, in so doing, must resolve all ambiguities and draw all reasonable
inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A
fact is “material” only if it has some effect on the outcome of the suit. Anderson v. Liberty
Lobby, Inc., 477 U.S. at 248; Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir.
2000). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also
Konikoff v. Prudential Ins. Co. of Am., 234 F.3d at 97.
The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact, after which the non-moving party must come forward with
sufficient evidence to support a jury verdict in its favor; the motion will not be defeated based
upon conjecture, surmise or the existence of “metaphysical doubt” concerning the facts. Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir.) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)), cert. denied, 502 U.S. 849 (1991). The party seeking to avoid
summary judgment “must do more than make broad factual allegations and invoke the
appropriate statute. The [party] must also show, by affidavits or as otherwise provided in
Rule 56 . . . , that there are specific factual issues that can only be resolved at trial.” Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also Driscoll v. Townsend, 60 F. Supp. 2d 78, 80
(W.D.N.Y. 1999).

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As the Second Circuit has explained:
[T]he trial court’s task at the summary judgment motion stage of
the litigation is carefully limited to discerning whether there are
any genuine issues of material fact to be tried, not to deciding
them. Its duty, in short, is confined at this point to issue-finding; it
does not extend to issue-resolution . . . . [I]t must be kept in mind
that only by reference to the substantive law can it be determined
whether a disputed fact is material to the resolution of the dispute.
Gallo v. Prudential Residential Serv., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
The eighth count of McKnight’s complaint asserts a claim against the City for
negligent hiring, training and supervision. (Docket # 1). The City argues that this claim must be
dismissed because there is no issue of fact that Vasil and Nicholls were acting within the scope
of their employment and, accordingly, a claim for negligent training cannot lie. (Docket ## 46-1
at ¶¶ 29-31; 46-2 at 9). During oral argument, counsel for the City reaffirmed its position that
the officers were acting within the scope of their employment at all relevant times and conceded
that in the event that McKnight prevails against the officers on her state law tort claims, she also
would be entitled to a judgment against the City by operation of law under the doctrine of
vicarious liability.
McKnight opposes the motion, contending that the caselaw relied upon by
defendants is inapplicable to her state law claim for negligent hiring, training and supervision.
(Docket # 47 at ¶ 12). During oral argument, counsel for McKnight confirmed that her claim
was asserted under state law and not under Section 1983. Counsel for McKnight explained that
her claim essentially mirrors New York Pattern Civil Jury Instruction § 2:240 and that his
interpretation of the relevant caselaw suggests that a New York state law claim for negligent
hiring, training and supervision is not automatically precluded by virtue of an employer’s
respondeat superior liability. According to McKnight, she has submitted evidence establishing

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that Vasil had not been properly trained when the events at issue occurred. (Id.). Finally,
McKnight maintains that if the Court dismisses the claim against the City, the dismissal should
be without prejudice to renewal in the event that the officers are ultimately determined to have
been acting outside the scope of their employment. (Id. at ¶ 7).
“To maintain a claim against a municipal employer for negligent hiring, training
and retention of a tortfeasor under New York law, a plaintiff must show that the employee acted
outside the scope of her employment.” Velez v. City of New York, 730 F.3d 128, 136-37 (2d Cir.
2013); Perkins v. City of Rochester, 641 F. Supp. 2d 168, 174-75 (W.D.N.Y. 2009) (“[i]t is well
settled under New York law that ‘[a] claim for negligent hiring or supervision can only proceed
against an employer for an employee acting outside the scope of [his] employment’”) (quoting
Stokes v. City of New York, 2007 WL 1300983, *14 (E.D.N.Y. 2007)). The rationale for this rule
is that the employer’s liability for the conduct of an employee acting within the scope of his
employment arises under the theory of respondeat superior, and recovery against the employer
for negligent hiring, training or retention is unnecessary. See Perkins v. City of Rochester, 641
F. Supp. 2d at 174-75; see also Mahar v. U.S. Xpress Enters., Inc., 688 F. Supp. 2d 95, 110
(N.D.N.Y. 2010).
Although a limited exception to this rule exists where the plaintiff “is seeking
punitive damages from the employer based on gross negligence in hiring, training or supervising
the employee,” see Mahar v. U.S. Xpress Enters., Inc., 688 F. Supp. 2d at 110, McKnight’s
complaint is devoid of any allegation of gross negligence on the part of the City and, in any
event, the City cannot be liable for punitive damages; therefore, this exception is inapplicable.
See Martinez v. Cnty. of Suffolk, 999 F. Supp. 2d 424, 433 (E.D.N.Y. 2014) (exception
inapplicable against municipality;“[i]t is [ ] well settled that the [s]tate and its political

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subdivisions . . . are not subject to punitive damages ... [as] the goals of punishment and
deterrence are not served when punitive damages are imposed against the [s]tate, for in such
circumstances, it ultimately is the innocent taxpayer who is punished”) (internal quotations
omitted) (some alterations in original); Woods v. Town of Cheektowaga, 2012 WL 5288767, *8
(W.D.N.Y. 2012) (“because [p]laintiffs have not alleged gross negligence on the part of the
[t]own, the exception to this general rule does not apply”); Batson-Kirk v. City of New York,
2009 WL 1505707, *13 n.4 (E.D.N.Y. 2009) (exception inapplicable to claim asserted against
municipality).
In her complaint, McKnight alleges that the individual defendants, Vasil and
Nicholls, were acting within the scope of their employment with the City when they committed
constitutional and state law violations against McKnight. (Docket # 1 at ¶ 4). Although the City
initially denied in its answer that the defendants were acting within the scope of their
employment (Docket # 5 at ¶ 2), the City has since conceded that the individual defendants were
acting within the scope of their employment at all relevant times.2 (Docket ## 46-1 at ¶ 31; 46-2
at 9-10). Although “[n]ormally the question of whether a defendant employee was acting within
the scope of his or her employment depends heavily on the facts and circumstances of the
particular case, and thus is appropriate for a jury[,] where a defendant employer admits its
employees were acting within the scope of their employment, an employer may not be held liable
for negligent hiring, training and retention as a matter of law.” Rowley v. City of New York, 2005
WL 2429514, *13 (S.D.N.Y. 2005) (internal quotation omitted); Virgil v. Darlak, 2013 WL
4015368, *1, 11 (W.D.N.Y. 2013) (dismissing negligent hiring, training and retention claim
against employer where issue of fact had initially existed, but counsel conceded on summary

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To the extent that defendants’ motion papers are unclear, counsel for the City confirmed the concession
at oral argument in response to this Court’s direct question.

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judgment that employee was acting within scope of employment); Akhalia v. Guardia, 2013 WL
2395974, *6 (E.D.N.Y. 2013) (“where an employer has admitted that the employee acted within
the course and scope of employment, evidence of negligent hiring, training, supervision or
retention becomes unnecessary, irrelevant and prejudicial”) (quoting Lee ex rel. Estate of Lee v.
J.B. Hunt Transp., Inc., 308 F. Supp. 2d 310, 313 (S.D.N.Y. 2004)); Gurevich v. City of New
York, 2008 WL 113775, *6 (S.D.N.Y. 2008) (“the [c]ity concedes that the defendant officers
were acting within the scope of their employment at all relevant times[;] [a]ccordingly, plaintiff’s
claim for negligent hiring, training, and retention is barred as a matter of law”).
Although McKnight interprets the caselaw to suggest that her negligent hiring,
supervision and training claim is not automatically precluded by the City’s respondeat superior
liability, McKnight has not identified and the Court has not uncovered any authority to support
such an interpretation. Indeed, the commentary to the pattern jury instruction identified by
counsel for McKnight during oral argument recognizes that the claim is barred where an
employer is liable for the torts of the employee acting within the scope of his or her employment.
See N.Y. Pattern Jury Instr. – Civil 2:240 (“[g]enerally, where an employee is acting within the
scope of employment, thereby rendering the employer liable for any damages caused by the
employee’s negligence under a theory of respondeat superior, no claim may proceed against the
employer for negligent hiring or retention”). Indeed, courts routinely dismiss negligent hiring,
training and supervision claims asserted against municipalities arising out of the conduct of
police officers who were acting within the scope of their employment. See Velez v. City of New
York, 730 F.3d at 137 (claim against municipality arising out of conduct of its officers who were
acting within the scope of their employment was properly dismissed); Poventud v. City of New
York, 2015 WL 1062186, *18 (S.D.N.Y. 2015) (dismissing claim against municipality arising

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out of officer conduct where city conceded that the officers were acting within the scope of their
employment; [a]n employer is liable under the theory of respondeat superior for any damages
caused by an employee’s intentional or unintentional torts”); Spear v. City of Buffalo, 2014 WL
1053987, *11 (W.D.N.Y.) (dismissing claim for negligent hiring, training and supervision
against city arising out of officer’s alleged torts of battery, false arrest and false imprisonment),
report and recommendation adopted, 2014 WL 1347759 (W.D.N.Y. 2014); Nesheiwat v. City of
Poughkeepsie, 2013 WL 620267, *2 (S.D.N.Y. 2013) (dismissing claims against municipality
for negligent training, hiring and supervision arising out of its officer’s alleged conduct involving
assault, battery and false imprisonment where plaintiff alleged that officers were acting within
scope of employment); Woods v. Town of Cheektowaga, 2012 WL 5288767 at *3, 8 (dismissing
claims against town arising out of its officers’ alleged conduct involving battery, assault and
intentional infliction of emotional distress where officers were acting within scope of
employment); Biggs v. City of New York, 2010 WL 4628360, *10 (S.D.N.Y. 2010) (“[h]ere,
there is no dispute that [the officers] were acting within the scope of their duties as police
officers[;] [a]ccordingly, no claim may proceed against the [city] for negligent hiring or
retention”) (internal quotation omitted); Yang Feng Zhao v. City of New York, 656 F. Supp. 2d
375, 378, 405-06 (S.D.N.Y. 2009) (dismissing claims against city for negligent hiring, retention
and supervision arising out of its officers alleged conduct involving assault, battery, intentional
infliction of emotional distress, defamation and negligence; “[t]he [c]ity concedes that the
individual defendants were acting within the scope of their employment when engaging in the
conduct of which they are accused[;] [t]hat concession opens the [c]ity to potential respondeat
superior liability and precludes a claim of negligent hiring, training or supervision”); Perkins,
641 F. Supp. 2d at 175 (“[t]here is no dispute that [the officer] was acting within the scope of his

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employment as a [c]ity police officer during the incident . . . [,] and thus plaintiff’s claims of
negligent hiring, training and supervision must be dismissed”). Accordingly, the City is entitled
to summary judgment dismissing the claim for negligent hiring, training and supervision.

CONCLUSION
For the reasons discussed above, McKnight’s motion seeking judgment in her
favor on her claim against the City for negligent hiring, training and supervision (Docket # 41) is
DENIED, the City’s cross-motion for summary judgment dismissing McKnight’s claim for
negligent hiring, training and supervision (Docket # 46) is GRANTED, and the claim is
DISMISSED with prejudice.
A pretrial conference will be held with the undersigned at 2310 U.S.
Courthouse, 100 State Street, Rochester, New York on April 24, 2015, at 2:00 p.m.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
March 30, 2015

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