MOLL v. GRIFFITH II II (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the complaint insofar as it alleges claims of negligent hiring, training, and supervision and negligent entrustment, and as modified the order is affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Mark Moll when the pickup truck that he was driving was struck by a snowplow owned by defendant City of Jamestown (City) and operated by defendant William F. Griffith, II, also known as W F Griffith, II, an employee of defendant Jamestown Department of Public Works (DPW). Defendants appeal from an order that, inter alia, denied their motion for summary judgment dismissing the complaint.

We agree with defendants that Supreme Court erred in denying that part of their motion seeking summary judgment dismissing plaintiffs’ negligent hiring, training, and supervision claim, and we therefore modify the order accordingly. “Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision, or training” (Decker v. State of New York, 164 A.D.3d 650, 653, 83 N.Y.S.3d 533 [2d Dept. 2018] [internal quotation marks omitted]; see Brown v. First Student, Inc., 167 A.D.3d 1455, 1456, 90 N.Y.S.3d 747 [4th Dept. 2018]; Watson v. Strack, 5 A.D.3d 1067, 1068, 773 N.Y.S.2d 676 [4th Dept. 2004]). “While an exception exists to this general principle where the injured plaintiff is seeking punitive damages from the employer based on alleged gross negligence in the hiring or retention of the employee” (Watson, 5 A.D.3d at 1068, 773 N.Y.S.2d 676 [internal quotation marks omitted]), “that exception is inapplicable [where the plaintiffs] did not seek punitive damages based upon an allegation that the defendant was grossly negligent in the hiring of its employees” (Decker, 164 A.D.3d at 654, 83 N.Y.S.3d 533; see Henry v. Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 A.D.3d 739, 741-742, 46 N.Y.S.3d 649 [2d Dept. 2017]). Here, plaintiffs do not seek punitive damages and failed to allege that defendants acted with gross negligence (see Decker, 164 A.D.3d at 654, 83 N.Y.S.3d 533).

We also agree with defendants that the court erred in denying their motion with respect to plaintiffs’ negligent entrustment claim, and we therefore further modify the order accordingly. “To establish a cause of action under a theory of negligent entrustment, the defendant must ․ have some special knowledge concerning a characteristic or condition peculiar to the [person to whom a particular chattel is given] which renders [that person's] use of the chattel unreasonably dangerous” (Monette v. Trummer, 105 A.D.3d 1328, 1330, 964 N.Y.S.2d 345 [4th Dept. 2013], affd 22 N.Y.3d 944, 976 N.Y.S.2d 696, 999 N.E.2d 174 [2013] [internal quotation marks omitted]; see Cook v. Schapiro, 58 A.D.3d 664, 666, 871 N.Y.S.2d 714 [2d Dept. 2009], lv denied 12 N.Y.3d 710, 2009 WL 1260022 [2009]). Here, defendants’ submissions established that Griffith had prior experience driving a snowplow and, for a few weeks after Griffith was hired by DPW, he was trained by an experienced snowplow driver through a training program provided by the City, during which Griffith observed and emulated the experienced driver's practices. Further, Griffith did not have a poor driving record, he had a commercial driver's license, and he previously was employed by the State of New York as a snowplow driver. We therefore conclude that defendants met their prima facie burden for summary judgment with respect to the negligent entrustment claim (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]). Plaintiffs failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).

Contrary to defendants’ contention, however, they failed to establish as a matter of law that Griffith did not operate the snowplow with reckless disregard for the safety of others, and we therefore conclude that the court properly denied the motion with respect to that issue (see Haist v. Town of Newstead, 27 A.D.3d 1133, 1134, 811 N.Y.S.2d 518 [4th Dept. 2006]; see generally Vehicle and Traffic Law § 1103 [b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Ruiz v. Cope, 119 A.D.3d 1333, 1334, 989 N.Y.S.2d 211 [4th Dept. 2014]).