NY Supreme (Richmond Cty.): Murdered police officer’s family may continue suit against shooter’s employer

Timoshenko v. Airport Auto Group et al., 2011 NY Slip Op 51492(U) (N.Y. Sup. Richmond Cty. August 5, 2011):

Defendant Airport Auto Group, Inc.’s employee shot NYPD officer Timoshenko after being stopped in a BMW owned by defendant.  Plaintiffs, the slain officer’s parents, sued Airport Auto Group and its president individually, on a “negligent hiring” theory.  The court denied the defendants’ summary judgment motion on plaintiffs’ negligent hiring claim, but granted it with respect to the individual liability of the corporate defendant’s president.

Respondeat Superior / Negligent Hiring

“Generally, a defendant has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.”  However:

“[c]ertain relationships … including the relationship between an employer and employee, may give rise to a duty to exercise control. Under the doctrine of respondeat superior, an employer can be held vicariously liable for the torts committed by an employee acting within the scope of the employment. …  [T]he employer may be held liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. However, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer’s business.” 

Here, defendants “established their prima facie entitlement to summary judgment by establishing that [the shooter] was not acting within the scope of his employment and was acting for personal motives unrelated to” his employer, and by presenting evidence that they were unaware of any criminal propensity the shooter may have had, did not give permission for use of the vehicle, and did not permit employees to use business cars during non-business hours.

Plaintiff, however, successfully raised triable issues of fact by presenting evidence “that keys to vehicles in the inventory were available for the use of salespersons and defendants had previously experienced employees using the vehicles during non-business hours, without authorization.”  The court held that this evidence “[c]learly … raises questions of fact with respect to whether defendants acted reasonably in hiring [the shooter] without a criminal background check after knowing vehicles in their inventory were routinely used without permission during non-business hours.”

Plaintiff also presented evidence that the shooter “had multiple prior felony convictions, including two lengthy prison sentences for gun possession and robbery”.  This evidence, held the court, “also raises questions as to the foreseeability of [the shooter]’s action”.

Thus, the court denied summary judgment to the corporate defendants on plaintiff’s negligent hiring theory.

Piercing the Corporate Veil 

The court granted the portion of defendants’ motion seeking dismissal of plaintiffs’ claims against the corporate defendant’s president individually. 

Piercing the corporate veil requires a plaintiff to prove that “(1) the owners exercised complete domination of the corporation in respect to the transaction; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury”.  Establishing the requisite fraud, in turn, requires a plaintiff to prove a material misrepresentation or omission of a knowingly false fact, made for the purpose of inducing plaintiff to rely upon it, justifiable reliance, and injury. 

Here, the individual defendant established a prima facie entitlement to dismissal, as plaintiffs failed to present any evidence that he engaged in fraud, or that “he had any involvement at all with hiring” the shooter.

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