Wade Clark Mulcahy LLP

Due to the principle of <em>respondeat superior</em>, more employees mean more exposure to the employer for their employees’ actions.  That said, the First Department recently emphasized the potential strength of an employer distinguishing the employee’s actions from their actual job duties as a defense.  In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/02/Gregory-v.-National-Amusements-Inc..pdf">Gregory v. National Amusements, Inc.</a>,</em> the plaintiff Gregory claimed she viewed a film at the defendants’ movie theater.  While walking out of the movie, Gregory alleged she tapped the defendant’s employee on the shoulder to say she liked the movie and then employee turned and without warning slashed Gregory’s face with a box cutter.

Encouragingly for defendants, even though the employee in question was a security guard and was working at the time of the incident, the First Department found that an alleged unprovoked assault was outside the scope of his employment as a matter of law.  Specifically, the appellate court framed the alleged actions as “not in furtherance of [the employer’s] business interests,” even if plaintiff may have argued a security guard’s duties theoretically include physical altercations with customers.

As a result, the First Department modified in part and affirmed in part an order from the trial court such that all claims against National Amusements were dismissed.  This decision is helpful for defendants who seek to aggressively pursue motion practice by advancing this theory in similar scenarios.

Thanks to Nicholas Schaefer for his contribution.  If you have any questions or comments please contact <a href="mailto:vterrasi@wcmlaw.com">Vincent Terrasi</a>.