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Bagel Shop is not Liable for its Unruly Consultant’s Antics

June 14, 2016

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Under the doctrine of <em>respondent superior, </em>an intentional tort “committed by an employee can result in liability for his or her employer” if the employee was acting “within the scope of the employment” at the time of the commission of the tort.
In <em><a href="http://www.newyorklawjournal.com/id=1202758483091/Villongco-v-Tompkins-Square-Bagels-1530932014?slreturn=20160514130652">Villongco v. Tompkins Square Bagels</a>, </em>plaintiff was seated with his friends at a bagel shop when a waitress asked him to leave.  Plaintiff then directed a vulgar slur against the waitress and exited the shop.  Upon learning of this insult from the waitress, defendant, who was hired by the bagel shop as a “consultant,” followed plaintiff out of the bagel shop.  The consultant and plaintiff began arguing about fifty feet away from the bagel shop.  Ultimately, the consultant struck plaintiff resulting in personal injuries.  At the time of the altercation, the consultant had stopped working at the bagel shop for the day.
Plaintiff sued the bagel shop based on theories of <em>respondent superior </em>and negligent supervision/hiring.  The bagel shop moved for summary judgment arguing it cannot be held liable for the consultant’s actions as they were not performed in furtherance of the business of the bagel shop.
The Supreme Court, New York County granted the bagel shop summary judgment finding the altercation did not occur while the consultant was performing his duties at the bagel shop, and the defendant and plaintiff were not on the bagel shop premises at the time of the altercation.
Business owners should instruct their employees how to handle potential altercations with customers. However, if the altercation does not happen within the scope of the employee’s work duties, a business owner has a strong defense that it is not liable for the altercation.
Thanks to Caroline Freilich for her contribution to this post.
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