Opinion
No. 01-CV-768A.
August 13, 2004
DECISION AND ORDER
This case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. § 636(b)(1), on January 8, 2002. On September 30, 2003, the defendants filed a motion for summary judgment. On November 6, 2003, the plaintiff filed papers in opposition to the motion for summary judgment. On February 13, 2004, Magistrate Judge Scott issued a report and recommendation recommending that defendants' motion for summary judgment be denied in all respects.
Defendants filed objections to the report and recommendation on February 23, 2004, and on March 11, 2004, the plaintiff filed a response thereto. The Court heard oral argument on the objections on July 30, 2004.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the report and recommendation to which objections have been made. Upon a de novo review, and after reviewing the submissions and hearing argument from the parties, the Court adopts in part the Magistrate Judge's report and recommendation, and grants in part and denies in part the defendants' motion for summary judgment.
The defendants object to the Magistrate Judge's recommendation that summary judgment be denied as to plaintiff's negligent hiring/retention claim. The Court agrees with the Magistrate Judge's conclusion that a genuine issue of fact exists as to whether it was reasonably foreseeable that hotel employee Gary Bradley would rape the plaintiff. Whether a risk is reasonably foreseeable is generally a question of fact for the jury. Kahane v. Marriott Hotel Corp., 249 A.D.2d 164 (1st Dep't 1998). The cases cited by the defendants in support of their objections are inapposite as, in those cases, there was no evidence that the employee had a propensity to commit any crimes. See e.g. Rodriguez v. United Transportation Co., 246 A.D.2d 178 (1st Dep't 1998) (holding that summary judgement should be granted to the defendant employer because there was not "even a scintilla of evidence" suggesting that the employee would rape a patron);Detone v. Bullit Courier Service, Inc., 140 A.D.2d 278 (1st Dep't), appeal denied, 73 N.Y. 2d 702 (1988) (vacating jury verdict against the defendant employer because nothing in the employee's background suggested that he might commit assault). In contrast, the plaintiff has proffered evidence that Bradley had a criminal history and that another hotel guest had previously accused him of sexual assault. Whether that prior assault occurred, and whether the hotel was negligent in retaining Bradley following those allegations are questions of fact for the jury. Accordingly, the defendants' motion for summary judgment as to this claim is denied.
The defendant has also moved for summary judgment as to plaintiff's claim of negligence based upon the defendant hotel's failure to give her a key when she requested one. As to this claim, the Court agrees that summary judgment should be granted to the defendants. Even assuming that the hotel breached some duty owed to the plaintiff when it failed to give her a key, there is simply no basis to infer that the harm caused to her (rape) was reasonably foreseeable based upon the hotel's breach of that duty. In other words, the plaintiff cannot establish that hotel's failure to give her a key was a proximate cause of her rape. Accordingly, summary judgment is granted to the defendants as to plaintiff's claim of negligence based upon the hotel's failure to provide her with a key.
The defendants also object to the Magistrate Judge's failure to grant summary judgment on the issue of punitive damages. The Magistrate Judge did not address the issue in his report and recommendation. In New York, punitive damages can be imposed upon an employer for the intentional wrongdoing of its employees only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit employee. Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369 (1986); see also Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932 (1999). Plaintiff argues that punitive damages are warranted because the defendants deliberately retained an unfit employee. The facts alleged by the plaintiff, if proven, establish only negligence. They do not establish that the employer knew for a fact that Bradley was sexually assaulting guests, but retained him despite such knowledge. Absent such evidence, the facts alleged by the plaintiff are simply insufficient to impose punitive damages under New York law. Accordingly, summary judgment is granted to the defendants as to plaintiff's claim of punitive damages.
CONCLUSION
Accordingly, the Magistrate Judge's report and recommendation is adopted in part. The defendants' motion for summary judgment is denied as to the plaintiff's claim of negligent hiring/retention of Gary Bradley, but granted with respect to her claim of negligence based upon the hotel's failure to provide her with a room key, and granted as to plaintiff's punitive damages claim.
The parties shall appear on September 2, 2004, at 9:00 a.m., for a meeting to set a trial date.
IT IS SO ORDERED.