Fencing School Held Not Liable for Sexual Assault of Minor By Coach

From KM v. Fencers Club, Inc., 2018 NY Slip Op 05923 (App. Div. 2d Dept. Aug. 29, 2018):

A necessary element of a cause of action alleging negligent hiring or negligent supervision of an employee is that the “employer knew or should have known of the employee’s propensity for the conduct which caused the injury” (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161; see Ronessa H. v City of New York, 101 AD3d 947, 948; Sandra M. [*2]v St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d 875, 879). Here, Fencers Club established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no knowledge of any propensity by Kfir to commit sexual misconduct, either prior to or during his employment with Fencers Club (see Shor v Touch-N-Go Farms, Inc., 89 AD3d 830, 831-832; Ghaffari v North Rockland Cent. School Dist., 23 AD3d 342, 344). The coaches, parents, and students of the club were shocked when they learned of the criminal misconduct, which took place outside of Fencers Club’s premises and in Kfir’s apartment. Although it was later revealed that Kfir gave massages to the infant plaintiff and another fencing student in a workout room, and that he made sexually provocative comments toward the infant plaintiff during fencing lessons, these incidents were never reported to Fencers Club. Much of the communication between the infant plaintiff and Kfir took place by cell phone or text message, outside of Fencers Club’s purview.

In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d at 562). Although the plaintiffs point to the fact that Fencers Club did not conduct criminal background checks prior to hiring their instructors, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d at 163; see Sandra M. v St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d at 879). Here, there was no evidence that Fencers Club had knowledge of any facts that would have caused a reasonably prudent person to conduct a criminal background check on Kfir. Moreover, the plaintiffs failed to come forward with any evidence that a criminal background check of Kfir would have revealed a propensity to commit sexual assault