II. Prodigy's Negligent Hiring and Retention of Jacks
Even where an employee does not act within the scope of his employment, "an employer may be required to answer in damages for the tort of an employee against a third party when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm." Kirkman v. Astoria General Hospital, 204 A.D.2d 401, 611 N.Y.S.2d 615 (2d Dep't 1994)(citing Detone v. Bullit Courier Service, Inc., 140 A.D.2d 278, 279, 528 N.Y.S.2d 575). Here, plaintiff contends that even if Prodigy is not vicariously liable for Jacks' conduct, it is nevertheless liable for its negligent hiring and retention of him as an employee whom they knew to be infected with AIDS and having sex with Prodigy customers. (Compl. at PP 155-169).
What plaintiff fails to allege, however, is that Prodigy knew that Jacks was having unprotected sex with customers without informing them that he carried the AIDS virus. This is a critical distinction because it was not Jacks' having AIDS nor Jacks' having sex with customers which was tortious under the law. Rather, it was Jacks' having unprotected sex with others without informing them that he was HIV positive that plaintiff argues is tortious. Compare Maharam v. Maharam, 123 A.D.2d 165, 510 N.Y.S.2d 104 (1st Dep't 1986) (holding that "wife stated legally cognizable causes of action [against husband] for wrongful transmission of genital herpes on theories of either fraud or negligence") and Doe v. Roe, 157 Misc. 2d 690, 598 N.Y.S.2d 678 (Justice Ct. 1993) (explaining that "New York recognizes a cause of action for intentional or negligent communication of a venereal disease") with id. at 693 (dismissing action, inter alia, because "persons who engage in unprotected sex, at a time of the prevalence of sexually transmitted diseases, including some that are fatal, assume the risk of contracting such diseases. Both parties in an intimate relationship have a duty adequately to protect themselves. When on ventures out in the rain without an umbrella, should they complain when they get wet?"). Because plaintiff here has not, and presumably cannot, allege that Prodigy knew that Jacks was concealing his HIV status from his sex partners or was having unprotected sex with them, plaintiff cannot argue that Prodigy's hiring or retention of Jacks was negligent. See Kirkman v. Astoria General Hospital, 204 A.D.2d 401, 403, 611 N.Y.S.2d 615, 616 (2d Dep't), leave to appeal denied, 84 N.Y.2d 811, 622 N.Y.S.2d 913 (Ct. App. 1994) (employer not liable for negligent hiring or retention of mall security guard who raped a customer where there was no showing that the employer had any knowledge of employee's propensity or history of such misconduct); Cornell v. State, 60 A.D.2d 714, 401 N.Y.S.2d 107 (3d Dep't 1977) (holding that where "nothing in the record indicates that the [employer] either knew or should have known of [the employee's] alleged dangerous homosexual tendencies," no liability for negligent hiring or retention of the employee could be found), aff'd, 46 N.Y.2d 1032, 416 N.Y.S.2d 542, 389 N.E.2d 1064 (Ct. App. 1979).
Further, under New York law, when an employee's conduct is beyond the scope of employment, an employer's duty to third parties to prevent misconduct "is limited to torts committed by employees on the employer's premises or with the employer's chattels. . . ." D'Amico v. Christie, 71 N.Y.2d 76, 87, 524 N.Y.S.2d 1, 6, 518 N.E.2d 896 (Ct. App. 1987). Here, the conduct complained of, whether it is the act of sex or Jacks' failure to disclose his HIV status, unquestionably took place outside the employer's premises and without the employer's chattels.
For the reasons discussed above, defendant's motion to dismiss for failure to state a claim is GRANTED, and the Clerk of the Court is directed to enter judgment in Defendant Prodigy's favor, dismissing the complaint with prejudice.
The Clerk of the Court is also directed to dismiss the action against Jacob Jacks without prejudice pursuant to Fed. R. Civ. P. 4(m) in that plaintiff has not served Jacks within the 120 days specified by the rule and has failed to demonstrate cause for such failure.
Dated: New York, New York
November 12, 1996