The Appellate Division reversed the motion and dismissed the complaint as against the employer-defendant, in this action where plaintiff was severely injured when, while standing on the sidewalk, a taxicab hopped the curb and struck her. Just before the accident, the taxi driver had an altercation with a bike messenger, who allegedly banged his hands and fists against the taxi. Allegedly, the taxi driver then steered his vehicle into the messenger, striking plaintiff in the process. Plaintiff alleges that the messenger's employer is vicariously liable for the messenger, who incited the altercation.
While the determination of whether an employee's act is within the scope of his employment is heavily dependent on factual considerations, the complaint failed to state a cause of action the employer on the theory of respondeat superior. Accepting the allegation that the messenger was an employee at the time of the accident, his alleged conduct cannot be reasonably viewed as falling within the scope of his employment. Although the precipitating dispute might have arisen while the messenger was acting in the course of his employment in making deliveries, his alleged inciting of an altercation or provoking the taxicab driver's assault cannot reasonably be construed as part of his duties as a bike messenger, or as acting in furtherance of his employer's interests. The complaint does not allege that the employer condoned, instigated or authorized the messenger's actions.
Case: Green v. Himon, NY Slip Op 04777 (1st Dep't June 13, 2017)
Here is the decision.
Tomorrow's issue: Law of the case and sua sponte dismissal.