Today’s burning question: Can a fire department be held liable for the conduct of a group of off-duty firefighters who get in a bar-room brawl?
Answer: Before reading a ruling by the Appellate Division of the New York Supreme Court in the infamous FDNY Salty Dog Brawl case, I would have said categorically no. Now I am not so sure.
Last week the New York Supreme Court ‘s Appellate Division, Second Department overturned a summary judgment granted to the City of New York in the case of Selmani v. City of New York.
Here is the court’s explanation of the facts:
- The plaintiffs Samir Selmani, Sinan Selmani, Luan Leka, Bekim Leka, Mentor Leka, Agron Selani, and Kujtim Selimi … were patrons at the Salty Dog Restaurant in Brooklyn when several members of the New York City Fire Department, including the defendants Michael Reilly and Ryan Warnock, entered the restaurant with coworkers, including supervisors.
- They allegedly came from a New York City Fire Department annual dinner held at another location and continued celebrating and drinking at the restaurant.
- After one of the injured plaintiffs accidentally spilled a drink on a firefighter, Reilly and Warnock allegedly attacked and assaulted the injured plaintiffs.
- In December 2010, the injured plaintiffs, and four spouses … commenced this action against, among others, the City of New York and the New York City Fire Department.
- Prior to pretrial discovery, the City… moved… for summary judgment dismissing the complaint [against] them. The Supreme Court granted the motion.
Part of the issue driving the Appellate Division’s ruling was how quickly the trial court let the city out of the suit – so quickly that the city was out of the case before discovery could commence. By doing so the trial court was essentially saying there is no possible set of facts upon which the city could be liable for the off-duty conduct of its firefighters.
To summarize the Appellate Division’s ruling: not so fast, there “could” be a factual basis to hold the city liable based on one of the two theories plaintiffs’ alleged. Those two theories were: (1) respondeat superior (master servant doctrine) and (2) direct negligence by the city/FDNY for hiring, training, retaining and supervising the firefighters in question.
The court summarized the law regarding when an employer can be held liable for the acts of its employees (citations and quotations removed):
- The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment.
- Pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. An employee’s actions fall within the scope of employment where the purpose in performing such actions is to further the employer’s interest, or to carry out duties incumbent upon the employee in furthering the employer’s business.
- An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment. Where, however, an employee’s actions are taken for wholly personal reasons, which are not job related, the actions cannot be said to fall within the scope of employment.
- In instances where vicarious liability for an employee’s torts cannot be imposed upon an employer, a direct cause of action against the employer for its own conduct, be it negligent hiring, supervision, or other negligence, may still be maintained.
- Here, the Supreme Court properly granted that branch of the City defendants’ motion which was for summary judgment dismissing the causes of action alleging vicarious liability.
- However, as to the causes of action alleging negligent hiring, supervision, training, and retention, the City defendants did not establish their entitlement to judgment as a matter of law.
In other words, the Appellate Division was saying: Trial Court – you were correct about respondeat superior… Respondeat superior is DOA!!!! But the record does not support you granting a summary judgment on the direct negligence theory.
The case now goes back to the trial court where the plaintiffs will have the opportunity to develop the facts to support their “negligent hiring, supervision, training, and retention” theory.
The plaintiffs are still a long way from winning. To prevail against the city they still have to prove that the city was negligent, and that the city’s “negligent hiring, supervision, training, and retention” was the proximate cause of their injuries. Of the four, negligent supervision is probably the strongest argument – given that there were company officers present in the Salty Dog. But even then plaintiffs would have to prove the officers has a legal duty to “supervise” subordinates even while off duty. Fascinating issues.
Here is a copy of the ruling: Selmani v NY
For those who attended our discussion of duty to act at FDIC 2014 as well as those who are interesting in the topic, consider the following: what is the impact if these firefighters were in uniform when the assault occurred, perhaps coming from an awards ceremony or funeral? Duty to act and scope of employment are not identical – but awfully close concepts!