Opinion
April 8, 1985
Appeal from the Supreme Court, Nassau County (Oppido, J.).
Resettled judgment affirmed, insofar as appealed from, with costs.
The error alleged on appeal with respect to the trial court's charge to the jury on the issue of the corporate employer's liability for punitive damages for the reckless, willful or malicious acts of its employees has not been preserved for appellate review by appropriate request or exception ( see, Moore v. Leaseway Transp. Corp., 49 N.Y.2d 720, 722; Bichler v. Lilly Co., 55 N.Y.2d 571, 583-584; O'Donnell v. K-Mart Corp., 100 A.D.2d 488, 490). Furthermore, to obtain a reversal, a ground not stated in a motion before the trial court cannot be first urged on appeal as a reason why the motion should have been granted ( Gilbert v. City of New York, 173 App. Div. 359). Although the corporate defendant moved to set aside so much of the verdict as awarded punitive damages against the corporate defendant on the ground there was insufficient evidence that its employees had acted maliciously, it was never contended that there was insufficient evidence to establish that the employer authorized, participated, or ratified the malicious conduct of its employees to warrant an award of punitive damages against the corporate defendant. Consequently, the latter issue has not been preserved for appellate review ( see, Fisher v. Wakefield Park Realty Co., 203 N.Y. 539, 540; Howe v. Johnston, 220 App. Div. 170, 172; cf. O'Donnell v. K-Mart Corp., supra, pp 490-491).
Evaluating the evidence in light of the trial court's instruction, which became the governing law ( see, Bichler v Lilly Co., supra, p 584; Knobloch v. Royal Globe Ins. Co., 38 N.Y.2d 471, 477), we cannot say that the jury verdict against the corporate defendant is without a sufficient factual foundation or that it is inconsistent with the jury verdict against the corporation's employees. Mangano, Brown and Rubin, JJ., concur.
Plaintiff was arrested by appellant's store detectives on suspicion of shoplifting. Following his acquittal of petit larceny, he brought this action to recover damages for false imprisonment and malicious prosecution. The jury exonerated one store detective and awarded $1 compensatory damages and $1 punitive damages on each cause of action against the other store detective. As to the detective's employer, defendant Times Square Stores, however, it awarded $250 compensatory damages plus $5,000 punitive damages on the false imprisonment cause of action and $5,000 compensatory damages and $25,000 punitive damages on the malicious prosecution cause of action. I perceive no basis for a punitive damage award against the employer and therefore dissent.
Putting aside the questions of whether a prima facie case was established against defendant Times Square Stores, an issue that I do not find free from doubt ( see, General Business Law § 218; Jacques v. Sears, Roebuck Co., 30 N.Y.2d 466; Roker v. Gertz Long Is., 34 A.D.2d 680; Tota v. Alexander's, 63 Misc.2d 908, affd 38 A.D.2d 892; False Imprisonment — Shoplifters, Ann., 47 ALR3d 998), and whether plaintiff was entitled to recover on false imprisonment and malicious prosecution theories ( see, Broughton v. State of New York, 37 N.Y.2d 451, cert denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929), on the record before us, it is evident, under settled principles, that the award of punitive damages against the employer cannot stand ( Guion v Associated Dry Goods Corp., 43 N.Y.2d 876; Craven v Bloomingdale, 171 N.Y. 439; Walker v. Lord Taylor, 236 App. Div. 111; 10 Encyclopedia N.Y. Law, Damages, § 831 at 346; Restatement [Second] of Agency § 217 C; Restatement [Second] of Torts § 909 comment b; 36 N.Y. Jur 2d, Damages, §§ 181, 182).
As these authorities demonstrate, an employer is not liable for punitive damages upon a mere showing that the employee was acting within the scope of his employment. There must be some degree of wrongdoing established on the employer's part. An employer "`though of course liable to make compensation for injuries done by his agent, within the scope of his employment, cannot be held liable for exemplary or punitive damages, merely by reason of wanton, oppressive or malicious intent on the part of the agent'" ( Craven v. Bloomingdale, 171 N.Y. 439, 447, supra; quoting Lake Shore Ry. Co. v. Prentice, 147 U.S. 101, 107).
The imposition of punitive damages against the employer here simply does not comport with the rationale for such an award. Instead, it amounts to an unwarranted and impermissible windfall to the plaintiff. "[W]here the employer is a corporation, the pocket which is hit is that of the blameless stockholders, whom no one wants to punish" (Prosser and Keeton, Torts § 2, at 12 [5th ed]; cf. Newport v. Fact Concerts, 453 U.S. 247; Sharapata v Town of Islip, 82 A.D.2d 350, affd 56 N.Y.2d 332).
Plaintiff does not argue that Times Square Stores' policy with respect to the processing of suspected shoplifters is in any way deficient. Rather, he simply contends that the store detectives improperly carried out that policy by refusing to investigate the truthfulness of his excuse for taking the merchandise. How, then, can Times Square Stores be cast in punitive damages? ( see, Laskowski v. County of Nassau, 57 A.D.2d 888; Chirieleison v. City of New York, 49 A.D.2d 873; Veals v. Consolidated Edison Co., 114 Misc.2d 626.) As we put it in Murray v. Long Is. R.R. Co. ( 35 A.D.2d 579, 580, affd 28 N.Y.2d 849), the punitive awards "were obviously based on the financial ability of the [employer] * * * and * * * [t]he amounts * * * ha[ve] no reality to the necessities of the case".
Even on the theory which the majority finds was preserved, there is insufficient proof of malice requisite to a punitive damages award. There is no "showing of some deliberate act punctuated with awareness of `conscious falsity'" ( Best v Genung's Inc., 46 A.D.2d 550, 552, quoting from Munoz v. City of New York, 18 N.Y.2d 6). The employees' conduct "could be found to be careless, [but] did not rise to the level of wantonness or maliciousness" sufficient to award punitive damages ( Guion v Associated Dry Goods Corp., 43 N.Y.2d 876, 878, supra; see, False Arrest — Defendant's State of Mind, Ann., 93 ALR3d 1109).
In any event, this is not a question of a jury charge becoming the law of the case, or more accurately "consent * * * to the law to be applied" ( Martin v. City of Cohoes, 37 N.Y.2d 162, 165; see also, 7 Weinstein-Korn-Miller, N.Y. Civ Prac, § 5501.11, at 55-31). There is simply no evidence to support an award of punitive damages against defendant Times Square Stores and, as in Guion v. Associated Dry Goods Corp. ( supra), the motion to dismiss should be sufficient to preserve the issue and so much of the judgment as awards punitive damages against defendant Times Square Stores should be reversed ( see also, Laskowski v. County of Nassau, supra; Chirieleison v. City of New York, supra; cf. Varriale v. Saratoga Harness Racing, 76 A.D.2d 991).
Accordingly, I dissent.