S.Ct. 367, 126 L.Ed.2d 295 (1993). This conclusion is supported
by the fact that Plaintiff's continuing fear of again
encountering her attacker at work was caused by her own delay in
identifying him to Delta.
With respect to state causes of action, the Plaintiff and Delta
have consistently asserted that New York law applies; they are
deemed to have consented to its application. See Celle v.
Filipino Reporter Enterprises, Inc., 209 F.3d 163, 175 (2d Cir.
2000) (implied choice of law).
Plaintiff has asserted claims of assault, battery, false
imprisonment and intentional infliction of emotional distress
against Delta under the doctrine of respondeat superior. She has
also advanced claims for negligent hiring, retention, and
Under the doctrine of respondeat superior, an employer may be
held vicariously liable for a tort "committed by an employee
while acting within the scope of his employment." Tomka, 66
F.3d at 1317 (citing Riviello v. Waldron, 47 N.Y.2d 297, 302,
418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979); Heindel v. Bowery
Savings Bank, 138 A.D.2d 787, 525 N.Y.S.2d 428 (3d Dep't 1988)).
"However, an employer is not liable for torts committed by the
employee for personal motives unrelated to the furtherance of the
employer's business." Tomka, 66 F.3d at 1317 (citing Heindel,
525 N.Y.S.2d at 428; Island Assoc. Coop., Inc. v. Hartmann,
118 A.D.2d 830, 500 N.Y.S.2d 315, 316 (2d Dep't 1986)); see Judith
v. Sisters of Charity Hospital, 93 N.Y.2d 932, 933, 693 N.Y.S.2d 67,
715 N.E.2d 95 (1999) ("Assuming plaintiff's allegations of
sexual abuse are true, it is clear that the employee here
departed from his duties for solely personal motives unrelated to
the furtherance of the Hospital's business."). An employer is not
liable for the unpredictable intentional acts of an employee
committed for purely personal reasons.
There is no basis to conclude that the claimed sexual assault
was anything other than a purely personal act. As in Tomka,
this defect is fatal. See Tomka, 66 F.3d at 1317; see also,
e.g., Moore v. Sam's Club, 55 F. Supp.2d 177, 195 (S.D.N.Y. 1999)
("[T]he intentional torts of employees related to sexual
misconduct `arise from personal motives and do not further an
employer's business, even when committed within the employment
context."'). Plaintiff cannot, as a matter of law, sustain
actions against Delta for assault, battery, false imprisonment,
or emotional distress stemming from the assault.
As to Plaintiff's negligence claims, it is assumed — without
deciding — that the New York Workers Compensation Act does not
operate to bar employee suits against employers for tortious acts
by a fellow employee in a foreign setting arranged by the
employer for its benefit. See N.Y. Work. Comp. Law § 29(6)
(preempting actions against an employer for injuries sustained by
an employee in the course of employment).
New York recognizes claims of negligent hiring, retention and
supervision against employers for employee's whose conduct causes
harm. See Kenneth R. v. Roman Catholic Diocese, 229 A.D.2d 159,
654 N.Y.S.2d 791, 795 (2d Dep't 1997) ("In instances where an
employee cannot be held vicariously liable for its employee's
torts, the employer can still be held liable under theories of
negligent hiring, negligent retention, and negligent
With respect to the negligent hiring claim, Plaintiff has
produced no evidence that Delta knew or should have known of any
hostile sexual acts committed — either in the workplace or
elsewhere — by Delta when it hired him. See Kenneth R., 654
N YS.2d at 795. This absence of evidence is fatal to plaintiff's
claim for negligent hiring.
The negligent supervision and negligent retention claims also
have no merit. An employer does not owe a duty, and is not
liable, to persons who are injured by its employees while the
employees are off duty, not then acting for the employer's
benefit, not on the employer's premises, and not using the
employer's equipment. See, e.g., D'Amico v. Christie, 71 N.Y.2d 76,
78, 524 N.Y.S.2d 1, 518 N.E.2d 896 (1987) (Kaye, J.)
(employer's liability for torts committed by its employees
outside the course and scope of their employment "is limited to
torts committed by employees on the employer's premises or with
the employer's chattels"); Ross v. Mitsui Fudosan, Inc.,
2 F. Supp.2d 522, 533 (S.D.N.Y. 1998) (same); see also Anderson v.
Adam's Mark Hotels and Resorts, No. 99-1100, 2000 WL 390107, at
*2 (10th Cir. 2000); Feingold v. Delta Air Lines, Inc.,
3:99-cv-0728-T, (N.D.Tex. Oct. 20, 1999) (Maloney, J.) (slip-op);
Ambrosio v. Price, 495 F. Supp. 381, 386 (D.Neb. 1979) ("An
employer owes no duty to persons who are injured by its employees
while the employees are off duty and not on the employer's
There is no dispute that Plaintiff and Defendant were off duty
and not acting on Delta's behalf at the time of the assault. Cf.
Rich v. Delta Air Lines, Inc., 921 F. Supp. 767, 776-77 (N.D.Ga.
1996). Although Plaintiff and Defendant were staying in hotel
rooms paid for by Delta, the airline neither had control over
activities in those rooms, nor did it have access to the rooms.
The hotel accommodations cannot be considered the airline's
"premises" or "equipment" as support for a claim of negligence
against Delta for the assault.
Delta's motion for summary judgment is granted. Costs and
disbursements are assessed against Plaintiff.
There being no just reason for delay, entry of a final judgment
in favor of Delta is directed. See Fed.R.Civ.P. 54(b).
The action against the individual defendant — the alleged
attacker — will proceed.
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