Summary
refusing with only limited discussion to recognize a duty in recommending former employee "where another party is responsible for the actual hiring"
Summary of this case from Davis v. Board of County CommissionersOpinion
August 10, 1987
Appeal from the Supreme Court, Orange County (Patsalos, J.).
Ordered that the order is affirmed, with costs.
In opposing Warwick's motion to dismiss, the plaintiffs failed to carry their burden of establishing a sufficient factual predicate on which to posit a duty of care owed by it to the infant plaintiff (see, CPLR 3013). The plaintiffs' claim of negligence against Warwick is based on the fact that it recommended a former employee for a position as a grammar school teacher with the Tri-Valley School District without disclosing that the teacher had been charged with sexual misconduct. Some 11 years after becoming employed by the Tri-Valley School District, the teacher caused injury to the infant plaintiff. An action for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff (Palsgraf v. Long Is. R.R., 248 N.Y. 339, 341). The common law imposes no duty to control the conduct of another or to warn those endangered by such conduct, in the absence of a special relationship between either the person who threatens harmful conduct or the foreseeable victim (Pulka v. Edelman, 40 N.Y.2d 781, 782-783, rearg denied 41 N.Y.2d 901). The mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring (Bell v. Perrino, 112 A.D.2d 124, lv denied 66 N.Y.2d 604, 895). Nor are there sound policy reasons warranting the expansion of the common-law duty of the schools since the plaintiffs have an adequate remedy at law as against the school district which had custody of the infant at the time of the injury and also against the wrongdoer (see, Pratt v. Robinson, 39 N.Y.2d 554, 560). Mangano, J.P., Bracken, Kunzeman and Harwood, JJ., concur.