Bar Brawl Case Continues Against City and FDNY on Negligent Hiring/Supervision/Training/Retention Theory

Don’t cry fight over spilled milk alcohol. That’s the (non-legal) takeaway from Selmani v City of New York, in which the Appellate Division, Second Department permitted plaintiff’s claims for negligent hiring, supervision, training, and retention to continue against defendants City of New York and the New York City Fire Department. The case arose from injuries sustained by plaintiffs during a fight at the Salty Dog Restaurant in Brooklyn.

The facts:

[Plaintiffs] 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.

The court affirmed the trial court’s dismissal of plaintiffs’ vicarious liability causes of action, which were based on the theory of respondeat superior. The court summarized that theory as follows:

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.

Defendants were not liable under that theory, since “the tortious conduct of Reilly and Warnock was not within the scope of their employment”.

The court reached a different conclusion, however, on plaintiffs’ claims alleging negligent hiring, supervision, training, and retention. Defendants “failed to submit any evidence demonstrating that they did not know or have reason to know of Reilly’s or Warnock’s alleged propensity for assaultive conduct.” In addition, they “failed to submit evidence demonstrating that any such alleged negligence was not a proximate cause of the injured plaintiffs’ injuries.”

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