In a recent decision that has the civil rights and tort bar abuzz, the New York Court of Appeals has charted new ground on respondeat superior liability. The case is Rivera v. State of New York, the vote 4-3, and the result may be chaos.

The Facts

Jose Rivera was an inmate in a New York State Department of Corrections and Community Supervision (DOCCS) prison. One morning in the mess hall, "correction officer Michael Wehby mocked [Rivera's] medically-issued protective helmet, which he was required to wear due to a seizure disorder. [Rivera] asked Wehby not to make fun of his helmet, fearing harassment by other inmates, and walked towards the food serving line. Wehby called [Rivera] back to the doorway of the mess hall. When [Rivera] obliged, Wehby grabbed claimant's jacket, pulled him outside the mess hall and began punching him on the face and head. [Rivera] was forced to his knees while Wehby hit and stomped on him, at which point two other correction officers—Officer Robert Femia and Sergeant Joseph LaTour—pushed [Rivera] down and applied handcuffs. Wehby removed claimant's helmet and continued the assault, yelling expletives and saying, in substance, 'I hope you die.' While immobilized on the floor, [Rivera] was punched, kneed and kicked in the head. At this juncture, Wehby struck [Rivera] in the head with his radio with such force that the battery became dislodged and hit the wall. Eventually, [Rivera] lost consciousness." Rivera v. State, 2019 WL 6255785, at *1 (N.Y. Nov. 25, 2019).

DOCCS' Inspector General conducted an investigation, deemed the correction officers' denials of excessive force incredible, and cited them "for providing false or misleading statements." Id. Wehby was criminally prosecuted for the assault and, after a mistrial, pled guilty to official misconduct.

Procedural History

Rivera sued the state of New York in the Court of Claims for common law assault and battery, claiming the state was liable for the officers' misconduct under the doctrine of respondeat superior. Rivera ultimately moved for summary judgment, asserting that the officers acted within the scope of employment because they "were on duty, in uniform, supervising inmates" at the time of the assault. The state cross-moved for summary judgment, apparently agreed to the facts as set forth above, and claimed that the officers' misconduct was outside the scope of employment as a matter of law. "The State emphasized that the unjustified and unauthorized use of force was a clear departure from DOCCS policies and procedures governing use of force." Id. at *2.

The Court of Claims agreed with the state and dismissed the case. The Appellate Division and the Court of Appeals affirmed.

'Within the Scope': a Multifactor, Factual Analysis

Respondeat superior literally means "let the master answer." Employers are liable "when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment." Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999). Liability attaches "for the tortious acts of … employees only if those acts were committed in furtherance of the employer's business and within the scope of employment." Doe v. Guthrie Clinic, Ltd., 22 N.Y.3d 480, 484 (2014). If an employee "for purposes of [their] own departs from the line of … duty so that for the time being [their] acts constitute an abandonment of … service, the [employer] is not liable." Judith M., 93 N.Y.2d at 933.

Factfinders must consider, among other factors, "the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated." Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979). It is a "fact-based inquiry." Rivera, 2019 WL 6255785, at *3.

In practice, New York courts have found employee action to be outside the scope only when the type of conduct has no conceivable relationship to the job: for example, when a correction or police officer sexually assaults a victim.

The Majority Opinion

Officer Wehby was on duty, in uniform, working at his place of employment, supervising inmates in the mess hall, "satisfying the time, place and occasion factor." But the majority characterized the "brutal" beating as "not in furtherance of any employer-related goal whatsoever." Id. at *4.

Were this, say, a restaurant, post office, or law firm, the analysis would be more straightforward: In none of these places should employees ever use force as part of their job. But in prisons, force is part of the job. In "occupations for which some physical contact with others is permissible or even expected, it may be difficult to determine whether a challenged action falls far enough outside the boundaries attendant to the employment relationship such that the employee should be solely liable for their respective tortious conduct."

Here we come to the nub: "correction officers at times use excessive force. Such conduct will not fall outside the scope of employment merely because it violates department rules or policies or crosses the line of sanctioned conduct. Under our multi-factored common-law test for determining respondeat superior liability, an employee's deviation from directions or governing standards is only one consideration in the analysis." But here, "the gratuitous and utterly unauthorized use of force was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law." Id.

The standard, then, is a "so egregious" test.

The opinion raises more questions than it answers. First, how much force is too much? How "egregious" must it be? Almost every prison excessive force case I have seen involved some degree of sadistic, vicious, and unconscionable behavior. How are plaintiffs, defendants, or lower courts to know where to draw the "so egregious" line? Rivera gives no workable standard to resolve this question.

Second, the opinion lets employers off the hook for the worst behavior of their employees. Just when a plaintiff/prisoner has been harmed the most, they are least likely to recover from a defendant who can satisfy a judgment. As a matter of policy, this is unsatisfactory: For the worst violations, victims will not be compensated, and the employer will not be accountable.

Third, the decision will incent plaintiffs to plead enough force to be "excessive," but not enough to be "so egregious." Employer-defendants will first deny the misconduct, then claim that if it happened, it is "so egregious" that they are scot-free. Anticipate litigation games on both sides.

What About the Two Other Officers?

Even more concerning is the majority's treatment of the other two officers. Their misconduct, while distressing, plainly did not rise to the level of Wehby's. Yet the majority held they also acted outside the scope of employment.

Officers LaTour and Femia pinned an inmate to the floor (which correction officers often do) and put him in handcuffs (which correction officers often do). As the dissent notes, it is "unclear … what LaTour and Femia observed immediately before Wehby first hit claimant and whether they acted in response to the altercation between claimant and Wehby as opposed to assisting Wehby in an unprovoked attack, even if Wehby's use of force itself was in violation of departmental regulations. In other words, these two officers might have seen only an altercation between a fellow correction officer and an inmate, and thus come to the assistance of Wehby, initially intending to restrain claimant, in furtherance of the State's interests in maintaining order through the use of force … . It is wholly foreseeable that officers would respond to restrain an inmate during a struggle with another correction officer." Id. at *14.

In addition, the fact that three officers, not one, participated in the force, would alone seem to raise a factual question as to whether they acted within the scope. Three separate state employees, trained by the state, all thought it appropriate to engage in this conduct, apparently in full view of other inmates, officers, and for all they knew, supervisors. No one hid in the shadows here. It was open, notorious, and brutal. Surely a reasonable factfinder could conclude, under these circumstances, that this was exactly the sort of conduct the State could reasonably foresee from its correction officers.

Conclusion

In Jacobellis v. Ohio, 378 U.S. 184 (1964), a First Amendment/obscenity case, Justice Potter Stewart famously wrote: "I know it when I see it." Four judges on the Court of Appeals knew "egregious" conduct when they saw it. Three did not. Let the litigation games begin.

Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady.