Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/04/Llorente-v.-Wnorowski.pdf">Llorente v. Wnorowski</a>,</em> 2022 NY Slip Op 02258 (2d Dept. 2022), the plaintiff was riding a motorcycle on the Grand Central Parkway when it collided with another motorcycle operated by the defendant Wnorowski, an off-duty police officer at the time, who was riding with other off-duty police officers on motorcycles. The plaintiff commenced a personal injury action against him and against his employers, the defendants City of New York and New York Police Department. The City and NYPD moved for summary judgment dismissing the complaint arguing that they were not vicariously liable for Wnorowski's actions because he was not acting within the scope of his employment as a police officer at the time of the accident, and that no police action otherwise contributed to the happening of the accident. the trial court denied the motion.</p>
<p style="text-align: justify;">Under the doctrine of <em>respondeat superior</em>, an employer is vicariously liable for a tort committed by an employee while the employee is acting within the scope of his or her employment [<em>Rivera v State of New York</em>, 34 NY3d 383 (2d Dept. 2020)]. "'Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment'" [<em>Danner-Cantalino v City of New York</em>, 85 AD3d 709 (2d Dept. 2011)]. Usually, these issues are left for a jury to decide. The Second Department affirmed the trial court’s decision citing the fact that there was conflicting testimony that the off-duty police officer attempted to pull over the plaintiff’s motorcycle prior to the accident. The simple act of attempting to pull over the plaintiff’s vehicle, even though he was not on the clock, was sufficient to create a triable issue of fact for a jury to review. The key takeaway on this case is that an employer can be found liable for the actions of his employee, even if that employee is off the clock, if it can be shown he acted within the functions of his employment at the time of the accident. The employer should be wary of making sure that the employee leaves his work at the place of business to avoid any semblance of vicarious liability which could extend to the employer.</p>
Thanks to Raymond Gonzalez for his contribution to this article. Should you wish to discuss, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.