Opinion
920 CA 19–00375
01-31-2020
Kyle GEHRKE, Plaintiff–Respondent–Appellant, v. MUSTANG SALLY'S SPIRITS AND GRILL, INC., Doing Business as Tiffany's Cabaret, and Seventeen Hundred Properties, Inc., Defendants–Appellants
WALSH, ROBERTS & GRACE, BUFFALO (KEITH N. BOND OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS. VANDETTE PENBERTHY LLP, BUFFALO (VINCENT PARLATO OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
WALSH, ROBERTS & GRACE, BUFFALO (KEITH N. BOND OF COUNSEL), FOR DEFENDANTS–APPELLANTS–RESPONDENTS.
VANDETTE PENBERTHY LLP, BUFFALO (VINCENT PARLATO OF COUNSEL), FOR PLAINTIFF–RESPONDENT–APPELLANT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the cross motion with respect to defendants' duty of care, and granting the motion and dismissing the amended complaint, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained during an arm wrestling competition that he initiated with one of defendants' employees while the two were at a strip club owned by defendants. In the amended complaint, plaintiff asserted a cause of action for negligence based on the theories of respondeat superior and premises liability. Defendants thereafter moved for summary judgment dismissing the amended complaint on the grounds that, inter alia, the employee was acting outside the scope of his employment at the time of the incident and defendants did not owe plaintiff a duty of care under the theory of premises liability. Plaintiff cross-moved for, among other things, summary judgment on the issue of liability. Defendants appeal and plaintiff cross-appeals from an order that, inter alia, denied defendants' motion and granted that part of plaintiff's cross motion with respect to the issue of defendants' duty of care to plaintiff under the theory of premises liability. We modify the order by denying plaintiff's cross motion with respect to defendants' duty of care to plaintiff, granting defendants' motion, and dismissing the amended complaint.
Defendants contend on their appeal that Supreme Court erred in denying their motion with respect to plaintiff's respondeat superior claim. We agree, and therefore we also reject plaintiff's contention on his cross appeal that he was entitled to summary judgment with respect to liability under that theory.
Although it is generally a question for the jury whether an employee is acting within the scope of employment (see Riviello v. Waldron , 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278 [1979] ; Carlson v. Porter, (Appeal No. 2), 53 A.D.3d 1129, 1131–1132, 861 N.Y.S.2d 907 (4th Dept. 2008), lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008] ), an employer is not liable as a matter of law under the theory of respondeat superior "if the employee was ‘acting solely for personal motives unrelated to the furtherance of the employer's business’ " (Mazzarella v. Syracuse Diocese, (Appeal No. 2), 100 A.D.3d 1384, 1385, 953 N.Y.S.2d 436 (4th Dept. 2012)). Here, we conclude that defendants met their initial burden on the motion by establishing that the employee's act of arm wrestling plaintiff was not within the scope of his employment and that plaintiff failed to raise a triable issue of fact in response (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). The uncontroverted evidence submitted by defendants demonstrated that, although the employee had various responsibilities at the club, he was not required to entertain the club's patrons, and he arm wrestled plaintiff out of personal motives unrelated to any of his job responsibilities (see Mazzarella , 100 A.D.3d at 1385, 953 N.Y.S.2d 436 ; Burlarley v. Wal–Mart Stores, Inc. , 75 A.D.3d 955, 956, 904 N.Y.S.2d 826 (3d Dept. 2010) ). Indeed, that evidence demonstrated that the club did not sponsor or sanction arm wrestling competitions on the premises and that neither plaintiff nor the employee had heard of anyone arm wrestling at the club prior to the incident. Moreover, although "it is not necessary that the precise type of injury caused by the employee's act be foreseeable" ( Dykes v. McRoberts Protective Agency , 256 A.D.2d 2, 3, 680 N.Y.S.2d 513 (1st Dept. 1998) ; see Riviello , 47 N.Y.2d at 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ), here the arm wrestling contest was not reasonably foreseeable because nothing about the impromptu contest was a natural incident of the employee's job duties (see Riviello , 47 N.Y.2d at 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278 ; cf. Sims v. Bergamo , 3 N.Y.2d 531, 534–535, 169 N.Y.S.2d 449, 147 N.E.2d 1 [1957] ; Salem v. MacDougal Rest., Inc. , 148 A.D.3d 501, 502, 48 N.Y.S.3d 581 (1st Dept. 2017) ; Jones v. Hiro Cocktail Lounge , 139 A.D.3d 608, 609, 32 N.Y.S.3d 156 (1st Dept. 2016) ). We likewise agree with defendants on their appeal that the court erred in denying their motion and in granting plaintiff's cross motion with respect to his claim that defendants owed him a duty of care under a theory of premises liability (see Stribing v. Bill Gray's Inc. , 166 A.D.3d 1503, 1505, 86 N.Y.S.3d 688 (4th Dept. 2018) ).
In light of our determination, defendants' remaining contention is academic.