Doe v. Montefiore Medical Center , 598 F. App'x 42 ( 2015 )

14-1124
Doe v. Montefiore Medical Center
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of March, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 LAURA TAYLOR SWAIN,
10 District Judge.*
11
12 - - - - - - - - - - - - - - - - - - - -X
13 Jane Doe,
14 Plaintiff-Appellant,
15
16 -v.- 14-1124
17
18 Montefiore Medical Center, Montefiore
19 Medical Group, Montefiore Health
20 System, Inc.,
21 Defendants-Appellees.
22 - - - - - - - - - - - - - - - - - - - -X
23
*
The Honorable Laura Taylor Swain, of the United
States District Court for the Southern District of New York,
sitting by designation.
1
1 FOR APPELLANT: JEFFREY M. HERMAN, Herman Law,
2 Boca Raton, Florida.
3
4 FOR APPELLEES: JON D. LICHTENSTEIN (with Laura
5 E. Rodgers, on the brief) Gordon
6 & Silber, P.C., New York, New
7 York.
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Failla, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Plaintiff-appellant Jane Doe appeals from a judgment of
17 the United States District Court for the Southern District
18 of New York (Failla, J.)1 dismissing some claims on summary
19 judgment and dismissing the remaining claims with prejudice
20 (by stipulation of the parties). We assume the parties’
21 familiarity with the underlying facts, the procedural
22 history, and the issues presented for review.
23
24 It is undisputed on this record that the assailant, Dr.
25 Richard Saulle, was employed by defendants, and that the
26 sexual assault on the plaintiff took place on defendants’
27 premises.
28
29 “To state a claim for negligent supervision or
30 retention under New York law, in addition to the standard
31 elements of negligence, a plaintiff must show: (1) that the
32 tort-feasor and the defendant were in an employee-employer
33 relationship; (2) that the employer ‘knew or should have
34 known of the employee’s propensity for the conduct which
35 caused the injury’ prior to the injury’s occurrence; and (3)
36 that the tort was committed on the employer’s premises or
37 with the employer’s chattels.” Ehrens v. Lutheran Church,
38 385 F.3d 232, 235 (2d Cir. 2004) (quoting Kenneth R. v.
1
The claims at issue in this appeal were resolved
in an earlier decision and order of the United States
District Court (McMahon, J.), but the case was reassigned to
Judge Failla before entry of final judgment.
2
1 Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 793
2 (App. Div. 2d Dep’t 1997)) (internal citations omitted).
3 This case therefore turns on whether that assault was
4 foreseeable.
5
6 New York law appears to take differing approaches
7 relating to foreseeability in cases alleging that sexual
8 assault by an employee was foreseeable to the employer. In
9 some cases, the plaintiff must offer evidence that the
10 employer knew (or should have known) of the employee’s
11 “propensity . . . to engage in inappropriate sexual
12 conduct.” Id. In other cases, the plaintiff has been
13 required to show only that the employer knew (or should have
14 known) of the employee’s propensity to engage in physical
15 assault, whether or not such conduct was of a sexual nature.
16 See, e.g., Dawn VV v. State of New York, 850 N.Y.S.2d 246,
17 249 (App. Div. 3d Dep’t 2008) (“Although defendant may not
18 have been aware that a sexual assault was likely to occur if
19 residents were left unsupervised, it was foreseeable that a
20 resident could engage in some type of physical assault
21 against another resident” where safety plans called for
22 residents to be supervised); T.W. v. City of New York, 729
23 N.Y.S.2d 96, 98 (App. Div. 1st Dep’t 2001) (“[I]t cannot be
24 said that, as a matter of law, it is unforeseeable that a
25 person with convictions for assault would commit a sexual
26 assault” when that person is employed by an organization
27 that serves children).
28
29 We need not decide this issue here. The district court
30 correctly determined that, on this record, no reasonable
31 jury could conclude that defendants knew or should have
32 known of Dr. Saulle’s propensity to commit an assault--let
33 alone a sexual assault. Accordingly, summary judgment in
34 favor of defendants was appropriate on the negligent
35 retention and supervision claim under New York law. See
36 Rodriguez v. United Transp. Co., 677 N.Y.S.2d 130, 132 (App.
37 Div. 1st Dep’t 1998) (entering summary judgment for
38 defendant because plaintiff presented no evidence of
39 employee’s “history of a propensity for violence or sexual
40 misconduct”).
41
42 Doe’s breach of fiduciary duty claim fails for the same
43 reason. See Padilla v. Verczky-Parker, 885 N.Y.S.2d 843,
44 846 (App. Div. 4th Dep’t 2009); see also Ehrens, 385 F.3d at45 236 n.2.
3
1 For the foregoing reasons, and finding no merit in
2 Doe’s other arguments, we hereby AFFIRM the judgment of the
3 district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
4