SHEILA DOE v. POVICH USA LLC USA LLC USA LLC

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Supreme Court, New York County, New York.

SHEILA C., a minor, under eighteen years of age by and through her grandmother and legal guardian Sheila DOE, Plaintiff, v. Maury POVICH, Maury Povich Show, Studios USA Television, LLC, Studios USA Television Distribution, LLC, Studios USA Talk Television, LLC, Polly Corman, Todd Kemmer, Morgan Doe, Companies “A”-“Z”, John Does “1”-“9” and Companies “1”-“9”, Defendants.

Decided: November 12, 2003

Robert A. Burstein and Alexander Stotland, Rand Rosenzweig Smith Radley Gordon & Burstein, LLP, New York, David M. Blum, New York, for plaintiff. Mark P. Gimbel, Jacqueline C. Wolff, Covington & Burling, New York, Lanny A. Breuer, Covington & Burling, Washington, D.C., for defendants Maury Povich, Studios USA Television, LLC, Studios USA Television Distribution, LLC, Studios USA Talk Television, LLC, Polly Corman, Todd Kemmer, and Morgan Doe.

At the outset of what appears to be the first New York case falling into an emerging category of “Talk Show Torts,” the named defendants move to dismiss the complaint brought on behalf of Sheila Craver, a minor who appeared on the Maury Povich Show (the “Show”). Plaintiff alleges the defendants' negligent acts connected with the Show set in motion a chain of events which concluded with her rape.   Plaintiff cross-moves for leave to amend, should the court find the complaint is inadequate.

Background

In 2001, the Show solicited “out-of-control teen” guests.   The plaintiff's mother contacted the Show. During conversations with plaintiff's mother and grandmother, the Show's staff was advised that plaintiff was 14 years old, undergoing counseling, and taking medication for emotional illness, as well as that she recently had attempted suicide, lost a close immediate family member, and reported sexual intercourse with one twenty-nine year old man and five boys who were under age sixteen.1  It was agreed that the teen would appear on the Show and that the Show would provide the teen with follow-up psychological counseling and a corrective “teen boot camp,” make transportation and hotel arrangements, and pay related expenses.   After being told the teenager lived with her grandmother, the Show asked that both plaintiff's mother and grandmother accompany the plaintiff on the trip.   On December 5, 2001, plaintiff, her mother and her grandmother were picked up by a limousine in their hometown of Lemphill, Texas, flown to New York City, and transported by limousine to a midtown hotel.

On December 6, 2001, the day of the taping at the studio, defendant Polly Corman and Show staff allegedly told the teen to act sexually provocative and requested that plaintiff look “sexier” by wearing her thigh-length top without slacks.   In accord with that theme, plaintiff claims her sexual experience was exaggerated five-fold during the Show.

While plaintiff was watching the taping of other guests on the Show with staff members, a man approached and exchanged greetings with Show personnel.   In their presence, he introduced himself to plaintiff as “Maury's limo driver,” complimented plaintiff's looks and asked for contact information so that he could show her around town at night.   When plaintiff's mother inquired about this exchange, an unidentified staff member told the mother not to worry because the staff had “everything under control.”

Later that evening, the driver called upon plaintiff at the hotel. After being turned away by plaintiff's mother and grandmother, he persuaded plaintiff to sneak away.   The complaint alleges that the driver drove plaintiff up in a limousine to a dark area, climbed in back with her, and raped her.

Based on the factual allegations summarized above, the complaint asserts causes of action for negligence, negligent infliction of emotional distress, slander, negligent hiring and retention, and negligence per se.   The moving defendants seek dismissal of all claims.

When considering a motion to dismiss, it is well settled that “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ).   The factual allegations of the complaint are to be taken as true, and the complaint must be interpreted in a fair and reasonable manner (see, e.g., Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333 [1969];  Tobin v. Grossman, 24 N.Y.2d 609, 612, 301 N.Y.S.2d 554, 249 N.E.2d 419 [1969];  Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409, 729 N.Y.S.2d 425, 754 N.E.2d 184 [2001] ).

Negligence and the Duty of Care

 Movants urge they owed no duty of care to the plaintiff at the time of the alleged rape and that all negligence claims must fall.   The issue of the “existence and scope of a duty of care is a question of law” (Church ex rel. Smith v. Callanan Industries, Inc., 99 N.Y.2d 104, 110-111, 752 N.Y.S.2d 254, 782 N.E.2d 50 [2002] ), to be approached with recognition that “[n]egligence is not a stereotyped thing, but, as courts have wisely said, it is a matter of time, place and circumstance;  and the same act of a defendant may be a breach of duty toward one person while not a breach of duty toward another” (Levine v. City of New York, 309 N.Y. 88, 93, 127 N.E.2d 825 [1955] ).

The defendants' argument has its seeds in Graves v. Warner Bros., 253 Mich.App. 486, 656 N.W.2d 195 (2002), app. denied 469 Mich. 853, 666 N.W.2d 665 (2003), reconsideration denied 469 Mich. 853, 669 N.W.2d 552 (2003) (the “Jenny Jones case”), which held that the Jenny Jones Show owed no duty to a former show guest who was murdered by another person who participated in the same taping session.   The murder occurred several days after the show and after both guests returned to their homes in another state.   The appellate court emphasized the distance of time and place, concluded that “under the circumstances defendants owed no legally cognizable duty to protect plaintiffs' decedent from the homicidal acts of a third party” and vacated the $29 million jury verdict (253 Mich.App. at 488, 656 N.W.2d at 197).   The court applied tort rules governing commercial premises where the owners and operators have a duty to use reasonable care which “is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an identifiable invitee” (253 Mich.App. at 496-497, 656 N.W.2d at 201), and ruled that the relationships between the talk show and its guests were “of business invitor to invitee” and that “any duty ends when the relationship ends” (253 Mich.App. at 498, 656 N.W.2d at 202).2

The facts pleaded by the instant complaint are distinctly different from the Jenny Jones case.   The complaint describes an active relationship between the Show and the plaintiff at the time of the claimed rape, in that the plaintiff was subject to the Show's travel, care and chaperone arrangements at the very time of the assault.   Further, the Show is described as having a continuing bargained-for future obligation to provide plaintiff with counseling, to send her to a remedial camp, and to return her to her home State (see, for a description of psychological screening and aftercare provided by television talk shows, Jason S. Schlessel, The Deep Pocket Dilemma:  Setting the Parameters of Talk Show Liability, 20 Cardozo Arts & Ent. L.J. 461, 481-483 [2002] ).   A fair summary of the complaint's allegations, and its inferences, is as follows:  (1) for the Show's commercial purposes and as a result of the Show's solicitation and selection, an “out-of-control” minor with disclosed emotional difficulties was brought into this State;  (2) the Show presented itself as having special expertise in remedying the problems of an “ out-of-control” teen, with the capability of choosing and providing an appropriate remedial therapist and camp program;  (3) while the child was under the Show's direct supervision, the Show staff allowed a person allegedly known to them to approach the minor and successfully learn how to contact the minor, notwithstanding that there was no facially proper purpose for such a contact;  (4) after being taped-and it is unclear that all taping was fully completed-the minor was left under the supervision of the two adults who admitted they could not control the minor and who had asked the Show to help them correct this problem;  and, (5) no other steps having been taken to protect the infant, to assist the guardians, or to prevent the driver from pursuing his desire to contact the minor, the child was lured away from the guardians by the driver and was raped.   Clearly, the pleading states a fact pattern very different from the Jenny Jones case.

 As to the law, also unlike the Jenny Jones case, no great legal scrutiny is required to identify a legally cognizable duty which underlies the negligence claim.   The pleading asserts negligent supervision of a child, a claim well-recognized in New York. A non-parent may be held responsible for negligent supervision of a child when the non-parent undertakes the care and supervision of a child, the child is injured, and such injuries foreseeably are related to the absence of adequate supervision (see Mirand v. City of New York, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263 [1994];  Shante D. v. City of New York, 83 N.Y.2d 948, 615 N.Y.S.2d 317, 638 N.E.2d 962 [1994] ).   As a matter of law, a high standard of care is imposed upon the supervisor of a minor and no lower standard of care may be utilized, such as the invitee standard used in the Jenny Jones case (Zalak v. Carroll, 15 N.Y.2d 753, 754, 257 N.Y.S.2d 177, 205 N.E.2d 313 [1965], duty to infant in defendants' care “not measured by what their duty would have been to a social guest or a mere licensee” and caretakers “were required to use reasonable care to protect the infant plaintiff from injury”;  Willis v. YMCA of Amsterdam, 28 N.Y.2d 375, 379, 321 N.Y.S.2d 895, 270 N.E.2d 717 [1971], “[A]lthough persons having children entrusted to their care are ‘not the absolute insurers' of their safety, they are ‘charged with the highest degree of care’ ”).

 Further, although movants request consideration of a number of other factors, none defeat the pleaded cause of action.   First, the fact that the Talk Show's personnel were not directly supervising the minor at the time of the injury is not fatal to the pleading.   A caretaker is not automatically exempt from responsibility merely because of a suspension of physical supervision of an injured minor where, as here, the conditions created by the caretaker are still in effect (Ernest v. Red Creek Central School, 93 N.Y.2d 664, 671, 695 N.Y.S.2d 531, 717 N.E.2d 690 [1999], school district may be responsible for injury after child released from custody when student was “released into a potentially hazardous situation” and hazard was partially of defendants' “own making”).   Once a claim of lack of adequate supervision is pleaded, it must be left to a later date to weigh whether the facts are such that the duty to supervise no longer lay with defendants (compare Berlin v. Nassau County Council, Boy Scouts of America, 229 A.D.2d 414, 645 N.Y.S.2d 90 [2d Dept.1996], summary judgment determination dismissing claim against trip supervisor for permitting slingshot purchase on trip when injury was one week after child returned home).

 Second, describing a rape as an unanticipated voluntary act offers no safe harbor defeating the pleading.   The proper inquiry here is whether the complaint claims that deficient supervision was a substantial contributing factor to injury to a minor by the harmful action of a third party, outside the presence of the supervisor, in a setting arising from the supervisor's failure to anticipate an obvious, inherent danger (Bell v. Board of Education of the City of New York, 90 N.Y.2d 944, 947, 665 N.Y.S.2d 42, 687 N.E.2d 1325 [1997], student separated from supervised class trip, rape held reasonably foreseeable consequence of earlier inadequate supervision, court noting “the very purpose of the ․ supervision was to shield [a] vulnerable schoolchild[ ] from such acts”;  Kush v. City of Buffalo, 59 N.Y.2d 26, 33, 462 N.Y.S.2d 831, 449 N.E.2d 725 [1983], minors injured by dangerous chemicals stolen from playground premises, “the intervening, intentional act of another is itself the foreseeable harm that shapes the duty”).   The pleading clearly meets this standard, for this contention is the very essence of the claim raised by plaintiffs.3

Third, defendants' contention that the involvement of the plaintiff's mother and grandmother insulates them from liability is unavailing.   Even assuming arguendo that the mother and grandmother bore some responsibility to supervise the plaintiff in the hotel, any contributory negligence on their part cannot, as a matter of law, defeat or impair a minor's claim (General Obligations Law § 3-111, “In an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant”;  Holodook v. Spencer, 36 N.Y.2d 35, 49, 364 N.Y.S.2d 859, 324 N.E.2d 338 [1974], statute indicates “that the parent's failure to provide adequate supervision ․ [is not] permitted to diminish or bar a child's recovery against a third party”).

 Finally, it is not fatal to the claim that plaintiff was a teenager.   All caretakers of minors have a duty of care, even if the minor is a teenager (Mary A. ‘ZZ’ v. Blasen, 284 A.D.2d 773, 726 N.Y.S.2d 767 [3d Dept.2001], neighbor agreed to “keep an eye” on teenage girls, one of whom was sexually assaulted, and was “required to use reasonable care to protect the child from harm and may be liable for injury proximately caused by ․ negligence”).   Whether the teenage plaintiff herself was contributorily negligent cannot be weighed on a motion to dismiss and likely not even on a motion for summary judgment (Carmen P. v. PS & S Realty Corp., 259 A.D.2d 386, 388, 687 N.Y.S.2d 96 [1st Dept.1999], in relation to 14 year old, “Whether a child has exercised reasonable care for a person of her age and maturity and development level is typically a jury question”;  Adolph E. by Susan E. v. Lori M., 166 A.D.2d 906, 560 N.Y.S.2d 567 [4th Dept.1990], “whether defendant, then 12 years of age, was negligent presents issues of fact which cannot be resolved on a motion for summary judgment”).

Based upon the foregoing, it is determined that plaintiff has adequately pleaded a cause of action for negligence.

Emotional Distress

 The emotional distress cause of action sets forth in its text mixed claims of both intentional and negligent infliction of emotional distress.   An intentional infliction of emotional distress claim must rest upon allegations that a defendant's behavior was “extreme and outrageous” to such extent that the action was “atrocious and intolerable in a civilized society” (Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349 [1985];  Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 [1983];  Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ).   The same legal standard is generally applicable to negligent infliction of emotional distress (Longo v. Armor Elevator Co., Inc., 307 A.D.2d 848, 850, 763 N.Y.S.2d 597 [1st Dept.2003], plaintiffs must “establish the element of extreme and outrageous conduct for a negligent infliction of emotional distress claim [by] ․ evidence that the ․ defendants' conduct was so outrageous in character and extreme in degree as to go beyond all possible bounds of decency”).

 Alternatively, a negligent infliction of emotional distress claim may rest upon an assertion that “defendants' conduct unreasonably endangered plaintiffs' physical safety” or, albeit irrelevant here, “that untruthful information regarding death was transmitted or that a corpse was negligently mishandled” (Dobisky v. Rand, 248 A.D.2d 903, 905, 670 N.Y.S.2d 606 [3d Dept.1998], summarizing Johnson v. State of New York, 37 N.Y.2d 378, 381-382, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975] ).   Where endangerment of physical safety is pleaded, the physical danger supporting a negligent infliction of emotional distress claim involves direct and immediate jeopardy, not a danger later arising as a consequence of a defendant's action (see, as to fear for self, Peters v. Rome City School Dist., 298 A.D.2d 864, 866, 747 N.Y.S.2d 867 [4th Dept.2002], child's conditions of confinement supported finding safety was endangered or fear for safety existed;  see, as to fear for another, DeAguiar v. County of Suffolk, 289 A.D.2d 280, 281, 734 N.Y.S.2d 212 [2d Dept.2001], plaintiff, 50 to 60 yards away from a relative's motorcycle accident was “not under an unreasonable risk of bodily harm,” and see, for the zone-of-danger rule, Bovsun v. Sanperi, 61 N.Y.2d 219, 228, 473 N.Y.S.2d 357, 461 N.E.2d 843 [1984] ).

Neither alternate basis for a negligent infliction of emotional distress claim applies here.   Also undermining the negligent emotional distress claim is the fact that the same actions are pleaded as supporting the negligence claim discussed above (see McIntyre v. Ford, 256 A.D.2d 269, 270, 682 N.Y.S.2d 167 [1st Dept.1998], lv. dismissed 93 N.Y.2d 919, 691 N.Y.S.2d 383, 713 N.E.2d 418 [1999], emotional distress claim is “a last resort” and “[p]recluded where the offending conduct is embraced by a traditional tort remedy”).

No other standard being applicable, the pivotal factor upon which the emotional distress claim must rest is the conduct of the defendants as pleaded.   No movant is the alleged rapist.   These movants are described as participants in various aspects of production of a television show, and no language in the pleading identifies any of the actions of an individual movant as “intolerable in a civilized society.”

Given that the actions attributed to each movant fail to meet the requisite standard, this claim against each movant is severed and stricken.

Slander

 Defendants also seek dismissal of the slander per se claim, on the ground that the complaint fails to allege the exact defamatory words, the speaker, and the time and place of the allegedly defamatory statements and the pleading fails to meet the particularity requirements of CPLR 3016(a) (see Dillon v. City of New York, 261 A.D.2d 34, 41, 704 N.Y.S.2d 1 [1st Dept.1999];  American Preferred Prescription, Inc. v. Health Management, Inc., 252 A.D.2d 414, 420, 678 N.Y.S.2d 1 [1st Dept.1998] ).

 Movants rightly argue that the pleading must set forth the exact words used, which also is necessary so that the court may perform a threshold review to determine if the exaggerating words are defamatory or, alternatively, are “rhetorical hyperbole” that “cannot reasonably be interpreted as stating actual facts about an individual” (Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 [1990], citing Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 [1987] ).   Such a review must be undertaken carefully when a claimed defamatory statement is made in the course of a public discussion, where both parties may use “non-literal, figurative language in expressing their views” (Horsley v. Rivera, 292 F.3d 695, 702 [11th Cir.2002], suit dismissed against talk show host Geraldo Rivera arising out of his exchange with anti-abortion activist).   Further, in the context present here, an exact quotation is required to identify whether a statement made in relation to a talk show was aired to the general public (Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 563 [5th Cir.1997], “It is common knowledge television shows ․ shoot more footage than necessary and edit the tape they collect down to a brief piece”;  see, for a description of editing process for a television show, Texas Beef Group v. Winfrey, 201 F.3d 680, 689 [5th Cir.2000], rehearing en banc den 212 F.3d 597 [5th Cir.2000], suit against Oprah Winfrey Show involving product disparagement claims of the Texas cattle industry).

Because the offending words are not set forth in the complaint, the slander claim is dismissed with leave to replead, if plaintiff be so advised (Avant Graphics Ltd. v. United Reprographics, Inc., 252 A.D.2d 462, 463, 676 N.Y.S.2d 160 [1st Dept.1998] ).

Negligent Hiring and Retention

 A cause of action for negligent hiring or retention requires allegations that the employer “knew or should have known of the employee's propensity to commit injury,” or the employer failed to investigate a prospective employee notwithstanding knowledge of “facts that would lead a reasonably prudent person to investigate that prospective employee” (T.W. v. City of New York, 286 A.D.2d 243, 245, 729 N.Y.S.2d 96 [1st Dept.2001];  see, as to elements, Koran I. v. New York City of Bd. of Educ., 256 A.D.2d 189, 683 N.Y.S.2d 228 [1st Dept.1998], and Yeboah v. Snapple, Inc., 286 A.D.2d 204, 729 N.Y.S.2d 32 [1st Dept.2001];  see also, addressing verdict after trial, Detone v. Bullit Courier Serv., 140 A.D.2d 278, 528 N.Y.S.2d 575 [1st Dept.1988], lv. denied 73 N.Y.2d 702, 537 N.Y.S.2d 490, 534 N.E.2d 328 [1989] ).   The complaint contains the necessary allegations.

 Negligent hiring and retention concepts do have sufficient flexibility to cover relationships which are not those of a typical employer-employee arrangement, especially where a named defendant is alleged to have selected or controlled persons placed in contact with minors (see Koran I. v. New York City of Bd. of Educ., supra, 256 A.D.2d at 191, 683 N.Y.S.2d 228, school volunteer screened by teachers and principal, claim dismissed only upon proof defeating substantive claim).   It is not ignored that the role and status of each moving defendant-and, indeed, of the alleged limousine driver and rapist-within the Show's organization and structure must be clarified in the course of discovery.   These relevant facts are necessarily “within defendants' exclusive knowledge” and “it would be premature to grant dismissal” for a failure to plead full supporting facts at this early stage of the proceeding (Parsons & Whittemore, Inc. v. Abady Luttati Kaiser Saurborn & Mair, P.C., 309 A.D.2d 665, 765 N.Y.S.2d 861 [1st Dept.2003] ).   Accordingly, the requests to dismiss this branch of the pleading are denied.

Negligence per Se (Child Endangerment Statute)

 The negligence per se claim is based on allegations that the conduct of several of the defendants violated Penal Law § 260.10(1).   The statute states a “person is guilty of endangering the welfare of a child when ․ [such person] knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health․”

 Negligence per se, also termed “absolute liability” and “liability without fault,” is limited to claims based upon a “violation of a State statute that imposes a specific duty” (Elliott v. City of New York, 95 N.Y.2d 730, 734, 724 N.Y.S.2d 397, 747 N.E.2d 760 [1999];  Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 304, 200 N.E. 824 [1936], “a new duty or a standard of care different from that required by custom and common law”;  Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 645, 649 N.Y.S.2d 115, 672 N.E.2d 135 [1996], such duty must impose more than “a standard of reasonableness”;  see also 79 N.Y. Jur.2d Negligence § 65, Statutes Imposing Civil Liability for Violation ).   If a statute gives rise to negligence per se and the breach contributes to an injury (Van Gaasbeck v. Webatuck Central School Dist. No. 1 of Towns of Amenia, 21 N.Y.2d 239, 246, 287 N.Y.S.2d 77, 234 N.E.2d 243 [1967] ), violation of that statute is “[c]onclusive evidence of negligence [and] calls for a directed verdict” of liability (Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 216 N.E.2d 317 [1966] ).

In relation to the mandate of Penal Law § 260.10(1) that adults refrain from acting in “a manner likely to be injurious to the physical, mental or moral welfare of a child,” it has been observed that “[t]he statute is broadly written” and it “does not require a particular outcome or actions aimed at a specific individual” but only that the defendant have “an awareness of the potential for harm” to a child (People v. Johnson, 95 N.Y.2d 368, 372, 718 N.Y.S.2d 1, 740 N.E.2d 1075 [2000];  see, similarly, People v. Hitchcock, 98 N.Y.2d 586, 590, 750 N.Y.S.2d 580, 780 N.E.2d 181 [2002] ).   This duty is clearly general, and harkens to custom and reasonableness.

Indeed, there is no independent support for plaintiffs' argument that the statute gives rise to negligence per se.   No New York case has interpreted this particular statutory language as giving rise to negligence without fault.   In the one jurisdiction where this argument was also raised, absolute liability was held to be unsupported by similar language (Hite v. Brown, 100 Ohio App.3d 606, 612, 654 N.E.2d 452, 456 [Ohio App. 8th Dist.1995], app. denied 73 Ohio St.3d 1414, 651 N.E.2d 1311 [1995], negligence per se inapplicable because “statute requires one to employ reasonable conduct under the circumstances, it does not describe a specific act but instead states a rule of conduct”;  see also LaFreniere v. Burns, 30 Conn. L. Rptr. 5, 2001 WL 649474 [Conn.Super.2001], application of endangerment statute unwarranted on facts).   Nationwide, similar broadly worded child endangerment provisions are the basis for criminal and custody termination disputes, and they are almost never invoked in a negligence context (see, collecting cases, Jeanne A. Fugate, Who's Failing Whom? A Critical Look at Failure-to-Protect Laws, 76 N.Y.U. L.Rev. 272, 308, n. 19 [2001] ).

It is helpful to contrast provisions in relation to which negligence per se does arise.   Typically involved is a “flat and unvarying duty,” such as is found in worker protection provisions of the Labor Law, which involve “a hazard of definable orbit” (Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 317-318, 83 N.E.2d 133 [1948] ).   Strikingly, because of the confined nature of the duty, the second branch of the child endangerment statute-the bar of employment of a minor in an “occupation involving a substantial risk of danger”-and kindred statutes limiting employment of a minor at dangerous tasks have been held to support absolute liability (see Stenson v. J.H. Flick Const. Co., 146 A.D. 66, 130 N.Y.S. 555 [1st Dept.1911], app. dismissed 203 N.Y. 553, 96 N.E. 1131 [1911], case brought under child endangerment provision, plaintiff required to establish employer knew child was a minor to claim negligence per se;  Karpeles v. Heine, 227 N.Y. 74, 124 N.E. 101 [1919], collecting cases, statutory prohibition against minor operating freight elevator).

Based on the above, the court determines that the statutory duty to refrain from acting in a manner “likely to be injurious to the physical, mental or moral welfare” of a minor child does not give rise to a negligence per se claim.   Accordingly, this claim is severed and dismissed as to each moving defendant.

Other Requests

 Movants also present heavily redacted contracts as documentary evidence indicating that individual defendants Kemmer and Corman were employed by or were independent contractors of Studio USA Talk Television and they urge the claims against Mr. Povich and the other corporate defendants should fall on that basis.   When a motion to dismiss is based upon documentary evidence, “[d]ismissal under CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496 [2002], quoting Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).   The proffered contracts shed no light on the actual degree of control any defendant had over any other defendant, and they reveal no information on the relationship of Studio USA Talk Television to Mr. Povich or the other corporate defendants.   Accordingly, these documents are inadequate to support dismissal of the complaint as requested.

Plaintiff's cross-motion for leave to amend is denied except as to the slander claim.   The balance of plaintiff's request is not supported by a proposed amended pleading nor by evidentiary supporting material (Abbott v. Herzfeld & Rubin, P.C., 202 A.D.2d 351, 609 N.Y.S.2d 230 [1st Dept.1994], lv. dismissed 83 N.Y.2d 995, 616 N.Y.S.2d 475, 640 N.E.2d 142 [1994] ).

* * *

This decision constitutes the order of the court.

FOOTNOTES

1.   An act of sexual intercourse with a minor 14 years old or less is classified as statutory rape in Texas (Texas Penal Code § 22.011). The plaintiff's behavior is consistent with that of a victim of predatory or abusive sexual relationships, who often displays promiscuity, depression, self-harm and susceptibility to revictimization (Michelle Oberman, Regulating Consensual Sex with Minors:  Defining a Role for Statutory Rape, 48 Buff. L.Rev. 703, 729-730 [2000] ).   The same author commented that, by discounting the importance of the statutory age limits, “modern criminal law has turned girls from ‘jail bait’ into ‘fair game’ without considering the nature and meaning of consensual sexual activity” (Michelle Oberman, Turning Girls into Women:  Re-evaluating Modern Statutory Rape Law, 85 J.Crim. L. & Criminology 15, 21-22 [1994] ).

2.   The Jenny Jones verdict was subject to considerable academic comment (see Richard M. Goehler and Jill Meyer Vollman, Expansion of Tort Law at the Expense of the First Amendment:  Has the Jones Court Gone Too Far? Stay Tuned to Find Out., 27 N. Ky. L.Rev. 112 [2000], written prior to the appellate reversal and containing a review of the jury instructions given;  Robin Famoso, Ambush TV:  Holding Talk Shows Liable for the Public Disclosure of Private Facts, 29 Rutgers L.J. 579 [1998];  see, for a review of cases against media defendants whose works were claimed to have led to injury, John Charles Kunich, Natural Born Copycat Killers and the Law of Shock Torts, 78 Wash. U. L.Q. 1157 [2000], Clay Calvert, Media Bashing at the Turn of the Century:  The Threat to Free Speech After Columbine High and Jenny Jones, 2000 L.Rev. Mich. St. U. Det. C.L. 151 [2000], and Clay Calvert, Media Liability For Violent Conduct:  One Year Later, 23 Loy. L.A. Ent. L.Rev. 247 [2003] ).

3.   Resting on the same assertion that the injury was inflicted by a third party, defendants raise unavailing objections concerning proximate cause and notice.   As to proximate cause, it is established that proximate cause raises an issue of fact not appropriate to a pre-answer motion (Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980], “whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence * * * [is] for the fact finder to resolve”).As to the contention notice must be pleaded, this argument is unsuited to this pleading, which asserts that the mother voiced her concern over the exchange between her daughter and the eventual rapist (see Shante D. v. City of New York, supra, 83 N.Y.2d 948, 615 N.Y.S.2d 317, 638 N.E.2d 962, affirming 190 A.D.2d 356, 361-362, 598 N.Y.S.2d 475 [1st Dept.1993], mother complained to teacher about perpetrator of sexual assault prior to incident).   In any event, case law does not appear to require pleading notice of a risk posed by an assailant where general deficient supervision of a minor is claimed (Coon v. Board of Education of the City of New York, 160 A.D.2d 403, 554 N.Y.S.2d 110 [1st Dept.1990], student trampled in a school stairway, “[w]here duty to supervise is mandatory, notice is not an issue” for the “general duty to supervise [is not] dependent on notice” [emphasis in original];  Garcia v. City of New York, 222 A.D.2d 192, 646 N.Y.S.2d 508 [1st Dept.1996], five year old sexually assaulted after being sent alone to a school's public bathroom, notice not required;  see also Murray v. Research Foundation of the State University of New York, 184 Misc.2d 453, 459, 707 N.Y.S.2d 816 [Sup.Ct. Monroe Co.2000] ).

DIANE A. LEBEDEFF, J.

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