Employer Not Liable For Assault Of Employee During Office Party
Plaintiff was assaulted by his employer's Chief Financial Officer at an office party. Plaintiff filed suit against various persons/entities, including his employer. Plaintiff alleged that his employer was liable under the theory of respondent superior.
The Court articulated the law relative to respondent superior: "an employer will not be vicariously liable for its employee's alleged assault ‘where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer'." Milosevic v. O'Donnell, 2011 WL 5922980, *1 (1st Dep't Nov. 29, 2011) (citation omitted).
The Court noted that the assault was not within the scope of the CFO's duties, and was not condoned, instigated or authorized by the employer. In fact, the Complaint stated, in relevant part, that the CFO "'lost control of his senses and attacked plaintiff ‘for no apparent reason'." Id. Therefore, the Court held that Plaintiff failed to state a claim against the employer under respondent superior.
Finally, the Court addressed Plaintiff's claim of common-law negligence in sponsoring the event. The Court stated that there were no allegations in the Complaint that the employer: controlled the premises and could be held liable for the injuries; knew "of the CFO's violent propensities when intoxicated or of the possibility of an assault." Id. (citations omitted). The Court concluded: "[d]ismissal of the claims cannot be avoided by speculation as to what discovery might reveal." Id. (citation omitted).
Employer's will not be held liable for an employee assaulting another employee, during an employer sponsored event, without certain acknowledgments and knowledge by the employer. If a Plaintiff has not properly plead the necessary requirements in the Complaint, pre-discovery dismissal is appropriate.