United States District Court, S.D. New York
March 30, 2004.
YVETTE ADORNO and STEPHANIE WOMBLE, Plaintiffs, -v.- CORRECTIONAL SERVICES CORPORATION, Defendant
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
In this diversity action, two former inmates of a federal community
confinement center operated by defendant Correctional Services
Corporation ("CSC"), a private company under contract with the federal
Bureau of Prisons ("BOP"), brought suit alleging that CSC was negligent
in hiring, retaining, training, and supervising an employee whom
plaintiffs allege sexually abused them. CSC has now moved for summary
judgment pursuant to Fed.R.Civ.P. 56. The parties have consented to
disposition of (his matter by a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). For the reasons stated below, CSC's motion is
granted in part and denied in part.
A. Factual Background
In considering CSC's motion for summary judgment, the Court accepts as
true the plaintiffs' version of the facts where supported by admissible
evidence and draws all factual
inferences in the plaintiffs' favor. See, e.g., McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999).*fn1
1. Le Marquis Community Correctional Center
Le Marquis Community Correctional Center ("Le Marquis") was a "halfway
house" for federal and state prisoners who had not yet completed their
prison terms. See Affidavit of Josette Nelson-Dabo in Support
of Correctional Services Corporation's Motion for Summary Judgment, dated
November 18, 2003 ("Nelson-Dabo Aff.") (reproduced in Notice of Motion,
filed November 19, 2003 (Docket #47) ("Notice of Motion")), ¶ 8. It
was operated by CSC, a private company, pursuant to a written contract
with the BOP and in accordance with guidelines set forth by the BOP.
Id; see Statement of Work, dated December 1992 ("BOP Statement
of Work") (reproduced as Exs. 13-17 to PL 56.1).
Plaintiffs Yvette Adorno and Stephanie Womble became residents at Le
Marquis in August and September 1998, respectively. Deposition of Yvette
Adorno, June 26, 2003 ("Adorno Dep.") (reproduced in part as Ex. I to
Nelson-Dabo Aff. and in part as Ex. 2 to PL 56.1), at 11; Deposition of
Stephanie Womble, July 3, 2003 ("Womble Dep.") (reproduced in
part as Ex. J to Nelson-Dabo Aff. and in part as Ex. 3 to Pl.
56.1), at 7, 110-11. They claim that, after arriving at Le Marquis, they
were sexually assaulted by Miguel Correa, an employee of CSC who worked
at Le Marquis as Resident Advocate. See generally Further
Amended Verified Complaint, filed January 7, 2003 (Docket #25)
(reproduced as Ex. A to Nelson-Dabo Aff.), ¶¶ 24, 26, 40, 42.
2. Conduct Against Adorno
On November 13, 1998, at approximately 7:00 or 8:00 p.m., Adorno
reported to Correa's office to discuss an infraction she had allegedly
incurred. Adorno Dep. at 50, 53-54; Pl. 56.1 ¶ 4. As Resident
Advocate, one of Correa's responsibilities was to investigate "incident
reports" for each resident and to ensure that his or her tights were not
being violated. Correctional Services Corporation Position Description:
Resident Advocate (Resident Advocate Job Description") (reproduced as Ex.
D to Nelson-Dabo Aff. and as Ex. 11 to Pl. 56.1). Correa had a private
office on the second floor of Le Marquis. Deposition of Josette
Nelson-Dabo, July 31, 2003 ("Nelson-Dabo Dep.") (reproduced in part as
Ex. H to Nelson-Dabo Aff. and in part as Ex. 1 to Pl. 56.1), at 50.
While in Correa's office, Adorno claims that Correa picked up her
shirt, touched her breasts, made various inappropriate sexual comments,
and initially refused to let her leave his office. Adorno Dep. at 66-70,
72. Adorno states that she was permitted to leave Correa's office only
because she had to be present in her room for roll-call at 9:00 p.m. but
that he instructed her to return to his office immediately thereafter.
Id. at 69-70, 72. At approximately 10:00 p.m., following
roll-call, Adorno returned to Correa's office. Id. at 76, 78.
When Adorno returned, Correa allegedly kissed her and pushed his body up
against hers. Id. at 84. Adorno claims that
Correa let her leave only after she threatened to scream and
promised not to report the incident. Id.
Adorno did not report the incident to any CSC or BOP officials,
including the Facility Administrator at Le Marquis, Josette Nelson-Dabo.
Id. at 76, 81, 101-02. The number to contact the BOP was posted
throughout Le Marquis, including in the female recreation room and in the
cafeteria. Nelson-Dabo Dep. at 58. In addition, a representative from the
BOP had explained to the residents at an orientation meeting that if they
were having problems with a CSC employee they should call the BOP
directly. Nelson-Dabo Aff. ¶ 21. Adorno testified that she did not
report the incident because Nelson-Dabo had threatened to return any
resident who complained about conditions at Le Marquis to federal prison.
Adorno Dep. at 101-02; accord Deposition of Susan Scainetti
("Scainetti Dep.") (reproduced in part as Ex. 6 to Pl.56.1), at
104, 127-28 (testifying that Nelson-Dabo had made such threats and that
Nelson-Dabo had sent a resident back to federal prison after that
resident complained about conditions at Le Marquis). Adorno did tell
another Le Marquis resident about the incident a day after it occurred.
Adorno Dep. at 76, 93-94; Scainetti Dep. at 145-46.
According to Adorno, this incident has caused her to experience anger,
mood swings, feelings of distrustfulness toward men, and problems being
intimate with men. Adorno Dep. at 127, 136-37. Adorno has sought
psychiatric counseling and therapy concerning these problems.
Id. at 122-24, 141. According to one psychiatrist, Adorno
suffers from post-traumatic stress disorder caused by Cornea's actions.
See Psychiatric Evaluations, dated October 19, 2000 ("Adorno
Psychiatric Evaluations") (reproduced as Ex. 4 to Pl.56.1), at 10.
3. Conduct Against Womble
Womble was a resident at Le Marquis from the end of September 1998
through December 1998. Womble Dep. at 7-8, 83, 110-11. During her stay,
she met with Correa in his office approximately 12 times to discuss
various infractions. Id. at 130. Womble alleges that over the
course of these meetings, Correa made various sexually inappropriate
remarks. Id. at 131-34. On approximately three such occasions,
Correa allegedly hugged Womble and placed his hands on her clothes over
her breasts. Id. at 144-45. In addition, Womble states that
Correa touched her buttocks on one occasion. Id. at 145, 150.
After about the fifth such encounter, Womble told Ms. Arias, her Case
Manager at Le Marquis and a CSC employee, see Nelson-Dabo Dep.
at 26, that Correa had "been harassing me and putting his hands on me
every time I go into his office," Womble Dep. at 160. Pursuant to
guidelines established by the BOP, CSC had instituted procedures by which
Case Managers were required to report to their supervisors incidents of
alleged sexual abuse, even if these allegations were unsubstantiated.
See Deposition of Jack Brown, September 26, 2003 ("Brown Dep.")
(reproduced in part as Ex. A to Def. Reply Mem. and in part as Ex. 9 to
Pl.56.1), at 54-55; Nelson-Dabo Dep. at 60-62; see also BOP
Statement of Work ch. 2, at p. 13, ¶ 6 (requiring that CSC
report to the BOP any instance of sexual abuse by a CSC
employee). At some point between her conversation with Womble and
Thanksgiving Day 1998, Arias left her position at Le Marquis. Womble Dep.
at 160. There is no evidence that Arias ever reported Womble's complaint
to her supervisors. Nelson-Dabo Dep. at 62.
Womble alleges that, a day or two after Thanksgiving Day 1998, she was
raped by Correa. Womble Dep. at 162-63. According to Womble, Correa
called her into his office at
approximately 8:30 p.m. Id. at 163, 177. Correa rose from
his chair, walked to Womble, and kissed her. Id. at 178-80.
Womble pushed him away, left his office, and went to a bathroom a few
steps down the hall. Id. at 178-81. Correa then entered the
bathroom, grabbed Womble from behind, and raped her. Id. at
182-86. When leaving the bathroom, Correa told Womble not to say anything
to Nelson-Dabo about the encounter or else Womble would be sent back to
federal prison. Id. at 188-89.*fn2
Womble did not report the rape to Nelson-Dabo, to other Le Marquis
officials, or to the police. Id. at 193, 218-19. She testified
that she did not do so because Nelson-Dabo had threatened residents that
if they engaged in any sexual activity or if they did not like the way Le
Marquis was operated, they would be returned to federal prison.
Id. at 193, 202-03. In addition, Womble testified that she
believed these threats to be founded based on her recollection of an
incident in which a resident voiced complaints and was subsequently
docked various privileges. Id. at 155-56.
Because of the rape and the others incidents with Correa, Womble states
that she has suffered physical pain and emotional suffering.
Id. at 179, 185, 187-88, 207-08, 224-25, 236.
She has since been treated for chlamydia, a sexually transmitted
disease that she states she did not have prior to the rape. Id.
at 214-15. She has sought psychiatric counseling and therapy.
Id. at 18, 225. According to one psychiatrist, Womble suffers
from post-traumatic stress disorder caused by Correa's sexual abuse and
rape. See Psychiatric Evaluations, undated ("Womble Psychiatric
Evaluations") (reproduced as Ex. 5 to Pl.56.1), at 37.
4. Hiring, Transfer, and Termination of Correa
CSC hired Correa for the position of Resident Supervisor at Le Marquis
on November 20, 1997. Brown Dep. at 18-19. CSC's requirements for the
position of Resident Supervisor, whose responsibilities essentially were
to monitor and supervise the activities of residents, were a high school
diploma or GED and one year of "supervisory experience in a human service
field." Position Description/Qualifications: Resident Supervisor
(reproduced as Ex. 10 to Pl.56.1); see Nelson-Dabo Dep. at
20-21; Brown Dep. at 14.
By March 10, 1998, Correa had been transferred to the position of
Resident Advocate. Brown Dep. at 36-37. CSC's requirements for the
position of Resident Advocate were a high school diploma or GED and one
year of "experience in [the] area of security." Resident Advocate Job
Description; see Brown Dep. at 33. In addition, applicants for
the position had to successfully pass a security background
investigation. Resident Advocate Job Description; see
Nelson-Dabo Aff ¶ 9. The BOP, which approved these requirements,
conducted a background investigation on Correa prior to his transfer.
Nelson-Dabo Aff. ¶¶ 9-10; Brown Dep. at 53-54. This check, which
consisted of running Correa's social security number and fingerprints,
revealed that Correa had attended college and had not been convicted of
any crimes. Nelson-Dabo Aff. ¶¶ 10-11.
As Resident Advocate, Correa's responsibilities included meeting
privately with residents in his office to discuss confidential matters.
Brown Dep. at 47-48. Correa was required to attend and did attend
an ethics class provided by CSC. Nelson-Dabo Dep. at 42-43;
Nelson-Dabo Aff. ¶ 19. The class dealt with how a Resident Advocate
should interact with residents to maintain a courteous relationship, how
to avoid inappropriate behavior, and how to report any misconduct to
management. Nelson-Dabo Dep. at 43; Nelson-Dabo Aff. ¶ 19.
Correa's alleged sexual abuse of Adorno and Womble was reported to Mark
W. Jensen, a BOP official, at the end of December 1998 by other Le
Marquis residents who learned of the abuse from Adorno and Womble.
Scainetti Dep. at 145-46; Deposition of Rosemarie Johnson
(reproduced in part as Ex. 7 to Pl.56.1), at 248, 251, 278. Immediately
upon learning of Correa's alleged misconduct from the BOP, CSC
interviewed Correa and the plaintiffs. Nelson-Dabo Aff. ¶ 24. After
conducting its investigation, CSC terminated Correa on January 4, 1999.
Id; see Letter from Josette Nelson to Miguel Correa, dated
January 6, 1999 (reproduced as Ex. E to Nelson-Dabo Aff.), at 1.
B. Procedural History
Plaintiffs filed their original complaint in this action on November 9,
2001 and an amended complaint on November 13, 2001. On April 19,
2002, CSC moved to dismiss the amended complaint pursuant to Fed.R. Civ.
P. 12(b)(6). See Notice of Motion, filed April 19, 2002 (Docket
#12). By Order dated December 18, 2002, the court denied CSC's motion.
Scainetti v. United States, 2002 WL 31844920 (S.D.N.Y. Dec. 18,
2002). In relevant part, the court held that plaintiffs' claims were not
barred by the applicable three-year statute of limitations or by
government contractor immunity. See Id. at*2-*4. The court did
plaintiffs to file a second amended complaint properly alleging
diversity jurisdiction as the basis for jurisdiction, See Id.
at *2, which plaintiffs did on January 7, 2003.
CSC has now moved for summary judgment under Fed.R.Civ.P. 56. For
the reasons stated below, CSC's motion is granted in part and denied in
II. SUMMARY JUDGMENT STANDARD
A district court may grant summary judgment only if "the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A genuine issue is one that "may
reasonably be resolved in favor of either party." Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 250 (1986). A fact is material if
it "might affect the outcome of the suit under the governing law."
Id. at 248. Thus, a genuine issue of material fact exists "if
`the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.'" Gayle v. Gonvea, 313 F.3d 677, 682 (2d
Cir. 2002) (quoting Anderson, 477 U.S. at 248). When
determining whether a genuine issue of material fact exists, all factual
inferences must be drawn and all ambiguities resolved in favor of the
nonmoving party. See, e.g., Savino v. City of New York,
331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255);
McPherson, 174 F.3d at 280. However, "[c]onclusory allegations,
conjecture, and speculation . . . are insufficient to create a genuine
issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d
Cir. 1998) (citation omitted); accord Harlen Assocs. v. Incorporated
Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).
"In moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant may satisfy [its] burden by
pointing to an absence of evidence to support an essential element of the
nonmoving party's claim." Vann v. City of New York,
72 F.3d 1040, 1048 (2d Cir. 1995) (citing Cetotex, 477 U.S. at 322-23). "A
defendant moving for summary judgment must prevail if the plaintiff[s]
fail to come forward with enough evidence to create a genuine factual
issue to be tried with respect to an element essential to [their] case."
Alien v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing
Anderson 477 U.S. at 247-48); accord Nebraska v.
Wyoming, 507 U.S. 584, 590 (1993); Chase Manhattan Bank v. Am.
Nat'l Bank & Trust Co. of Chi., 93 F.3d 1064, 1072 (2d Cir.
CSC has moved for summary judgment on the following grounds: (1)
plaintiffs cannot establish a prima facie case of negligence because they
have not presented an expert to testify as to the standard of care
required for the operation of a correctional halfway house and whether
CSC deviated from that standard; (2) CSC cannot be vicariously liable for
Correa's alleged actions because they were taken outside the scope of his
employment; (3) no claim of negligent hiring or retention can lie because
the BOP conducted a background check on Correa and because CSC had no
notice of Correa's alleged actions or his propensity to commit such
actions until the end of December 1998, when CSC states it first learned
of Correa's alleged sexual abuse of Adorno and Womble and at which time
CSC immediately terminated Correa; (4) CSC's alleged negligence was not a
proximate cause of plaintiffs' injuries; and (5) CSC is entitled to
government contractor immunity. See Def. Mem. at 7-19; see
also Nelson-Dabo Aff. ¶¶ 3-5.
The parties' briefs assume that New York law applies to this matter and
this "`implied consent . . . is sufficient to establish choice of law/"
Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir.
2000) (quoting Tehran-Berkeley Civil & Envtl. Eng'rs v.
Tippetts-Abbett-McCarthy-Stratton, 888 F.2d 239, 242 (2d Cir.
A. Requirement of Expert Testimony
CSC contends that in order for plaintiffs to establish a prima facie
case of negligence, expert testimony is necessary "concerning the
standard(s) of care that CSC was responsible for and how CSC departed
from those standards." Def. Mem. at 7. Specifically, CSC avers that
"[s]tandards such as proper hiring and recruitment practices, ethics
training, courses provided by CSC and the BOP, and the proper physical
layout of offices at Le Marquis are outside the ken of the ordinary juror
and must be established through expert testimony." Id. at 8.
Because plaintiffs have submitted no expert testimony, CSC argues that
summary judgment is appropriate. See Id.: Def. Reply Mem. at
If a plaintiff cannot establish a prima facie case without the benefit
of expert testimony, and the plaintiff is unable to procure such
testimony, then summary judgment is appropriate. See,
e.g., Grassel v. Albany Med. Ctr. HOSP., 223 A.D.2d 803, 805
(3d Dep't 1996). However, under New York law, expert testimony is
required only where "`the subject-matter to be inquired about is presumed
not to be within common knowledge and experience.'" Fane v. Zimmer.
Inc., 927 F.2d 124, 131 (2d Cir. 1991) (quoting Meiselman v. Crown
Heights Hosp., 285 N.Y. 389, 396 (1941)). Where a matter is "`within the
experience and observation of the ordinary jurymen from which they may
draw their own conclusions and the facts are of such a nature as to
special knowledge or skill,'" expert testimony is not required.
Id. (quoting Meiselman, 285 N.Y. at 396).
CSC has cited no New York case to support their contention that expert
testimony would be required for plaintiffs to establish a prima facie
case of negligence. The cases cited by CSC for this proposition involve
circumstances far different from those in this case. Some deal with the
evidence necessary for a plaintiff to prevail in a medical malpractice
action. See Lasek v. Nachtigall 189 A.D.2d 749, 750 (2d Dep't
1993); Amadon v. State of New York, 182 A.D.2d 955, 956-57 (3d
Dep't 1992); Jacobs v. Newton, 768 N.Y.S.2d 94, 103, 107-09
(Civ. Ct. 2003); Cruz v. Alhambra Day Treatment Ctr., 2003 WL
21436353, at *1 (N.Y.Sup.Ct. App. Term Apr. 17, 2003). These cases are
obviously irrelevant since "[t]he distinction between ordinary negligence
and malpractice turns on whether the acts or omissions complained of
involve a matter of medical science or art requiring special skills not
ordinarily possessed by lay persons or whether the conduct complained of
can instead be assessed on the basis of the common everyday experience of
the trier of the facts." Miller v. Albany Med. Ctr. Hosp.,
95 A.D.2d 977, 978 (3d Dep't 1983) (citations omitted). Indeed, expert
testimony is required by statute in New York for certain medical
malpractice actions. See N.Y. C.P.L.R. 4401-a.
The two remaining New York cases cited by CSC Thomas v.
City of Auburn, 217 A.D.2d 934 (4th Dep't 1995), and Chanler v.
Manocherian, 151 A.D.2d 432 (1st Dep't 1989) are likewise
inapposite. Thomas held only that a trial court could permit an
expert to testify regarding whether police officers were reasonable in
leaving unprotected an individual who was threatened with death and
subsequently killed after the officers left him alone. See 217
A.D.2d at 934, 936. Similarly, Chanler held merely that an
expert should have been permitted to testify as
to "the common standards and requirements applicable to the
placement of barriers in a public passageway." 151 A.D.2d at 434-35.
Another case cited by CSC Robinson v. United States Bureau
of Prisons, 244 F. Supp.2d 57 (N.D.N.Y. 2003) is irrelevant
because it arose not under New York law but under 42 U.S.C. § 1983 as
an Eighth Amendment claim. See id. at 62. Even so,
Robinson held only that the mere fact that one officer was
stationed in a common area to supervise 219 inmates was by itself
insufficient to demonstrate that the prison guards were made aware of an
excessive risk to the inmates' safety. See Id. at 64-65. The
court made clear that nonexpert testimony such as rules and
regulations regarding prison staffing would have been permissible
to make this showing. See Id. at 65 (permitting the showing to
be made by additional evidence, whether "expert or otherwise").
The remaining case law cited by CSC comes from the District of Columbia
courts. See Def. Mem. at 7-8 (citing Phillips v. District of
Columbia. 714 A.2d 768 (D.C. 1998); Hughes v. District of
Columbia, 425 A.2d 1299 (D.C. 1981); Morton v. Bums, No.
01 CA 6368 (Super. Ct. D.C. Mar. 20, 2003) (annexed to Def. Mem.)). As
reflected in Clark v. District of Columbia, 708 A.2d 632, 634
(D.C. 1997), the District of Columbia's highest court has "repeatedly
held that the standard of care owed by the District of Columbia to
persons in its custody is a matter beyond the ken of the average juror
that requires expert testimony." No such rule exists in New York,
however, and there is thus no basis for this Court to conclude that a New
York court would decide that the standard of care owed to persons in
custody must in all circumstances be considered "beyond the ken of the
average juror." Thus, we decline to follow the rule articulated in the
District of Columbia cases.
With respect to the negligent retention claim in this case, for
example, a lay juror could reasonably determine without expert testimony
that CSC should not have retained Correa if CSC had been placed on notice
that he had engaged in sexual misconduct with the residents of Le Marquis
under the circumstances alleged here. Indeed, it would be difficult to
imagine that there exists an expert who would testify that it would be
appropriate to retain Correa if CSC actually was aware of Correa's
behavior. Thus, the jury will not be asked to decide some matter beyond
its experience but instead will decide assuming it believes that
Womble did in fact tell Arias about Correa's actions and that CSC was
thereby put on notice of Correa's conduct whether CSC's retention
of Correa deviated from the appropriate standard of care owed to
plaintiffs. Such a judgment is capable of being made by laypersons.
Accordingly, CSC is not entitled to summary judgment merely because there
is no expert evidence in the record.*fn3
B. CSC's Vicarious Liability
CSC states that "Correa's alleged sexual misconduct was clearly outside
the scope of his duties as [Resident Advocate] and the alleged conduct
clearly did not serve any legitimate business purpose." Def. Mem. at 11
Thus, CSC argues that it cannot be held vicariously liable for Correa's
actions because they were taken outside the scope of his employment.
See Id. at 9-11; Def. Reply Mem. at 5-7.
The doctrine of respondeat superior `Venders a master vicariously
liable for a tort committed by his servant while acting within the scope
of his employment." Riviello v. Waldron, 47 N.Y.2d 297, 302
(1979) (citations omitted). However, "[a]n employer will not be held
liable under this doctrine for actions which were not taken in
furtherance of the employer's interests and which were undertaken by the
employee for wholly personal motives." Galvani v. Nassau County
Police Indemnification Review Bd., 242 A.D.2d 64, 68 (2d Dep't 1998)
(citations omitted). Nevertheless, an employer is not excused from
liability "merely because [its] employees, acting in furtherance of [its]
interests, exhibit human failings and perform negligently or otherwise
than in an authorized manner." Riviello, 47 N.Y.2d at 302.
Instead, the test is "whether the act was done while the servant was
doing his master's work, no matter how irregularly, or with what
disregard of instructions." Id. (internal quotation marks and
To be held vicariously liable, an "employer need not have foreseen the
precise act or the exact manner of the injury as long as the general type
of conduct may have been reasonably expected." Id. at 304
(citation omitted). Thus, "[w]here the element of general foreseeability
exists, even intentional tort situations have been found to fall within
the scope of employment." Pizzuto v. County of Nassau,
239 F. Supp.2d 301, 313 (E.D.N.Y. 2003) (citing Riviello, 47 N.Y.2d
at 305). This determination "is heavily dependent on factual
considerations and is therefore ordinarily a question for the jury."
Id.: accord Riviello, 47 N.Y.2d at 303. However, where there
is no conflicting evidence as to the material facts, a court may make
this determination as a matter of law. See Salvatore v. KLM Royal
Dutch Airlines, 1999 WL 796172, at *5 (S.D.N.Y. Sept. 30, 1999);
Cepeda v. Coughlin, 128 A.D.2d 995, 997 (3d Dep't 1987).
The Court of Appeals of New York has set forth the following guidelines
for determining whether tortious acts have been committed within the
scope of employment:
 the connection between the time, place and
occasion for the act,  the history of the
relationship between employer and employee as
spelled out in actual practice,  whether the
act is one commonly done by such an employee, 
the extent of departure from normal methods of
performance, [and]  whether the specific act
was one that the employer could reasonably have
Haybeck v. Prodigy Servs. Co., 944 F. Supp. 326, 329
(S.D.N.Y. 1996) (citing Riviello, 47 N.Y.2d at 302); See
also Mingo v. United States, 274 F. Supp.2d 336, 346 (E.D.N.Y.
2003) ("While all five factors are considered, New York courts generally
place greater emphasis on the fifth factor, namely, whether the acts
involved . . . could reasonably have been anticipated by [the] employer."
After applying these factors and accepting as true all of plaintiffs'
evidence, the Court concludes that no reasonable jury could find that
Correa's actions were within the scope of his employment. Of the above
five factors, the only one that arguably favors the plaintiffs is the
first "the connection between the time, place and occasion for
the act." This is because the "time, place and occasion for the act" show
that Correa's status as a CSC employee in the position of Resident
Advocate enabled him to commit the alleged sexual assault Plaintiffs have
testified that they were sexually assaulted after being required to
report to Correa's private office as part of CSC's process for reviewing
alleged infractions. Thus, there was a connection between the time,
place, and occasion for the act and Correa's employment
There is no evidence in the record concerning the second factor. The
third and fourth factors, however, clearly favor CSC. Plaintiffs do not
dispute that the act of sexual abuse and/or
rape is not one that is commonly done by a Resident Advocate; nor
do they dispute that Correa's actions substantially departed from normal
methods of performance.
The Court turns now to the fifth factor, which "New York courts
generally place greater emphasis on . . ., namely, whether the acts
involved . . . could reasonably have been anticipated by [the] employer,"
Mingo, 274 F. Supp.2d at 346. Employers have been found
vicariously liable for an intentional assault where the nature of the
employee's duties made it foreseeable that such an assault would take
place. See, e.g., Sims v. Bergamo, 3 N.Y.2d 531, 534-36 (1957)
(assault of unruly patron by bartender to protect employer's property and
to maintain order on premises was within the scope of bartender's
employment); Cepeda, 128 A.D.2d at 997 (where prison guards
used allegedly excessive force in returning inmates to their cells after
a fight, actions held to be within the scope of their employment since
"[c]ustody and control of inmates and the maintenance of prison safety
and security are the primary duties and responsibilities of correction
officers"). Here, however, the nature of Correa's duties as Resident
Advocate in no way mandated any kind of physical contact, let alone
sexually oriented physical contact.
Because tortious sexual activity generally is entirely divorced from
the nature of an employment position, "New York courts consistently have
held that sexual misconduct and related tortious behavior arise from
personal motives and do not further an employer's business, even when
committed within the employment context." Ross v. Mitsui Fudosan,
Inc., 2 F. Supp.2d 522, 531 (S.D.N.Y. 1998) (citing cases). Thus,
New York courts have repeatedly found no vicarious liability for claims
involving sexual misconduct, including sexual assault. See, e.g.,
Joshua S. v. Casey, 206 A.D.2d 839, 839 (4th Dep't 1994) (sexual
abuse of a child by a priest); Kirkman v. Astoria Gen. Hosp.,
204 A.D.2d 401, 402 (2d Dep't 1994) (rape of child patient by
hospital security guard); Koren v. Weihs, 190 A.D.2d 560,
560-61 (1st Dep't 1993) (hospital psychotherapist who engaged in "sex
therapy" with a patient); see also Haybeck, 944 F. Supp. at 330
The applicability of these principles is not altered merely because CSC
allegedly had notice of Correa's propensity to commit sexual acts through
Womble's complaint to Arias. As the Second Circuit has explained:
[W]hat is reasonably foreseeable in the context of
respondeat superior is quite a different thing
from the foreseeably unreasonable risk of
harm that spells negligence. When we talk of
vicarious liability we are not looking for the
employer's fault but rather for risks that may
fairly be regarded as typical of or broadly
incidental to the enterprise [the employer] has
Cronin v. Hertz Corp., 818 F.2d 1064
, 1068 (2d Cir. 1987)
(internal quotation marks and citations omitted) (discussing general
principles of vicarious liability in the context of a case arising under
Connecticut law). In other words, while Womble's complaint to Arias is
relevant to CSC's liability for negligence (as discussed below), it is
not a consideration in determining whether CSC is vicariously liable for
Because the factors applicable to the doctrine of vicarious liability
favor CSC, the Court grants it summary judgment with respect to this
C. CSC's Direct Liability for Negligence
"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.'" Haybeck, 944 F. Supp. at 332 (quoting
Kirkman, 204 A.D.2d at 403). "A cause of action for negligent
hiring or retention requires allegations that the employer `knew or
should have known of the employee's propensity to commit injury,' or the
employer failed to investigate a prospective employee notwithstanding
knowledge of `facts that would lead a reasonably prudent person to
investigate that prospective employee.'" Sheila C. v. Povich,
768 N.Y.S.2d 571, 580 (Sup.Ct. 2003) (quoting T.W. v. City of New
York 286 A.D.2d 243, 245 (1st Dep't 2001)).
CSC argues that it is entitled to summary judgment on plaintiffs'
claims of negligent hiring and negligent retention. See Def.
Mem. at 11-13; Def. Reply Mem. at 7-9. We deal with each claim in turn.
1. Negligent Hiring
CSC argues that it could not have been negligent in hiring Correa
because the BOP's background check and CSC's interview process "did not
place CSC on notice of any potential propensity Correa might have had for
violence or sexual abuse." Def. Mem. at 12. Plaintiffs do not argue that
the background check was somehow inadequate or that there is any evidence
in the record that CSC should have been on notice of any propensity
Correa might have had for violence or sexual abuse prior to his transfer
to the position of Resident Advocate. Instead, plaintiffs' argument is
that CSC was negligent in transferring Correa to the position of Resident
without his having met CSC's own requirement for the position:
possessing one year of "experience in [the] area of security."
See Pl. Mem. at 6-7.
The Court will assume, arguendo, that Correa did not possess
the necessary experience and that the failure by CSC to adhere to the
one-year security experience requirement could constitute negligence on
its part. The problem with plaintiffs' argument is that, even under these
assumptions, CSC is still entitled to summary judgment because plaintiffs
have not demonstrated how this negligence proximately caused any of their
harm. See, e.g., Borden v. Capital Dist Transp. Auth.,
307 A.D.2d 1059, 1061 (3d Dep't 2003) (liability for negligent hiring exists
only where the employer hired the employee with knowledge of the
propensity that caused the injured party's harm (citing Detone v.
Bullit Courier Serv., Inc., 140 A.D.2d 278, 279 (1st Dep't 1988))).
Plaintiffs argue that "[s]ecurity experience was obviously required
because the Resident Advocate . . . asserted extensive authority over
residents, including of the opposite sex, in a confidential setting." Pl.
Mem. at 6; see also Id. at 7 (the security experience
requirement "served to protect residents from potential abuse by their
Resident Advocate" and CSC "should have known that an individual lacking
qualifications for the position of Resident Advocate could lack the
restraint to confidentially deal with residents and not sexually abuse
them"). No reasonable jury, however, could conclude that Correa's lack of
having one-year security experience proximately caused the plaintiffs'
harm. There is no reason to believe that "experience in [the] area of
security" means anything other than its normal meaning: experience
protecting persons or property from harm by others not from harm
caused by the very person performing the security function. As plaintiffs
tacitly admit elsewhere in their argument, this is a case about an abuse
of supervisory authority. See Id. at 5 ("[CSC] designated
[Correa] as plaintiffs' supervisor and, in
doing so, vested its own authority in him. . . . Thus, it was
[Correa's] threats of wielding the authority which [CSC] conferred, and
returning plaintiffs to federal prison, that allowed him to sexually
abuse both plaintiffs and rape [Womble]."). There is no causal contention
between Correa's alleged lack of security experience and the abuse of his
supervisory authority over the residents. Accordingly, CSC is entitled to
summary judgment on plaintiffs' negligent hiring claims.
2. Negligent Retention
CSC argues that it is entitled to summary judgment on plaintiffs'
negligent retention claims because it had no notice of Correa's alleged
actions or his propensity to commit such actions until the alleged rape
of Womble was reported to CSC by the BOP, at which time CSC immediately
conducted an investigation and terminated Correa. See Def. Mem.
at 12-13; Def. Reply Mem. at 8-9.
As noted, an employer is "`required to answer in damages for the tort
of an employee against a third party when the employer has . . . retained
the employee with knowledge of the employee's propensity for the sort of
behavior which caused the injured party's harm.'" Haybeck,
944 F. Supp. at 332 (quoting Kirkman, 204 A.D.2d at 403). Here,
there is evidence that Womble told Arias that Correa had "been harassing
me and putting his hands on me every time I go into his office." Womble
Dep. at 160. Womble's report came "a couple of weeks" after her arrival
at Le Marquis in September 1998, id., and thus preceded the
alleged rape by Correa near Thanksgiving Day 1998 and the alleged sexual
abuse of Adorno on November 13, 1998. A jury would be entitled to
conclude that the report to Arias put CSC on notice of "the sort of
behavior which caused the injured party's harm." Compare Kenneth R.
v. Roman Catholic Diocese of
Brooklyn, 229 A.D.2d 159, 164, 166 (2d Dep't) (that child
plaintiffs told certain priests about the sexual abuse they were
suffering at the hands of another priest was sufficient to withstand
defendant's motion to dismiss plaintiffs' negligent retention and
negligent supervision claims), cert. denied 522 U.S. 967
(1997), with Kirkman, 204 A.D.2d at 403 (employer of security
guard accused of raping a child hospital patient was not liable for
negligent hiring or retention where there was no showing that the
employer had any knowledge of the security guard's propensity or history
of such misconduct). While CSC complains that the only evidence in the
record of Womble's report to Arias is Womble's own testimony,
see Def. Reply Mem. at 10, this testimony is enough to create a
genuine issue of fact as to whether that report occurred. Accordingly,
CSC is not entitled to summary judgment on plaintiffs' negligent
D. Lack of Proximate Cause as to Damages
In a particularly distasteful argument, CSC argues that "[c]onsidering
plaintiffs' background of mental and physical abuse it is difficult to
even comprehend that any alleged conduct by Correa could have been a
substantial factor or proximate cause of plaintiffs' alleged injuries."
Def. Mem. at 14. In support, CSC cites to testimony by the plaintiffs
showing that "physical and mental damage was inflicted upon [them]
throughout their lives by boyfriends, spouses, or family members."
Id. CSC thus concludes that none of Correa's alleged conduct,
if imputed to CSC by its negligence, could have contributed to
plaintiffs' current physical and mental states. Id. at 16.
CSC cites no support for the proposition that an individual who already
has injuries is incapable of suffering additional injuries. Moreover, the
proposition is absurd on its face. Plaintiffs have testified to the
physical pain and/or emotional distress that resulted from Correa's
alleged actions. See Adorno Dep. at 127, 136-37; Womble
Dep. at 179, 185, 187-88, 207-08, 224-25, 236. Womble has since been
treated for chlamydia, a sexually transmitted disease that she states she
did not have prior to the rape. Womble Dep. at 214-15. In addition, a
psychiatrist has reported that both plaintiffs suffer from post-traumatic
stress disorder caused by Correa's sexual abuse. See Adorno
Psychiatric Evaluations at 10; Womble Psychiatric Evaluations at 37.
Plaintiffs have thus put forth sufficient evidence for a jury to conclude
that Correa's actions proximately caused them harm.
E. Government Contractor Immunity
Finally, CSC argues that summary judgment should be granted on all of
plaintiffs' claims because it is entitled to government contractor
immunity. See Def Mem. at 16-19. Under this doctrine, where "a
private party has contracted with the federal government to carry out a
project on behalf of the government, then that private party, like the
federal government, is shielded from liability under the doctrine of
sovereign immunity." Norwood v. Esmor Inc., 1997 WL 65913, at
*4 (S.D.N.Y. Feb. 13, 1997) (citing Yearsley v. W.A. Ross Constr.
Co., 309 U.S. 18, 19 (1940)).
Government contractor immunity originally developed in the context of
whether private contractors would be held liable for design defects in
government-commissioned military equipment. In Boyle v. United
Technologies Corp., the Supreme Court held that "[l]iability for
design defects in military equipment cannot be imposed, pursuant to state
law, when (1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and
(3) the supplier warned the United States about the dangers in the use of
the equipment that were known to the supplier but not to the United
States." 487 U.S. 500, 512 (1988). The Court reasoned that the "selection
of the appropriate design for military equipment"
involved "judgment as to the balancing of many technical, military,
and even social considerations" that should not be
"second-guess[ed] . . . through state tort suits against contractors"
carrying out the design specifications of the federal government.
Id. at 511 (internal quotation marks and citation omitted).
CSC argues that it is entitled to government contractor immunity
because it "performed all of its functions with regard to hiring,
supervising and training its employees in accordance with the BOP's
contract and the specifications, policies and procedures, which the BOP
specifically required, commented on, revised, and approved." Def. Mem. at
16-17. However, even assuming that government contractor immunity would
be applicable outside of the military context, see In re Chateaugay
Corp., 146 B.R. 339, 351 (S.D.N.Y. 1992) (limiting government
contractor immunity to the military context): cf. Scainetti 2002 WL
31844920, at *3 n.1 ("The U.S. Court of Appeals for the Second Circuit
has not addressed whether the government contractor defense is applicable
in non-military contexts."), the requirements necessary for its
application have not been met in this case.
"The government contractor defense only shields a government contractor
from claims arising out of its actions where the government has exercised
its discretion and judgment in approving precise specifications to which
the contractor must adhere." Malesko v. Corr. Servs. Corp.,
229 F.3d 374, 382 (2d Cir. 2000), rev'd on other grounds,
534 U.S. 61 (2001); See Malesko, 534 U.S. at 74 n.6 (government
contractor immunity is appropriate "[w]here the government has directed a
contractor to do the very thing (hat is the subject of the claim");
Densberger v. United Techs. Corp., 297 F.3d 66, 75 (2d Cir.
2002) ("The affirmative defense applies only if the government exercised
significant control over the relevant actions of the
contractor."), cert. denied 537 U.S. 1147 (2003).
"Stripped to its essentials," government contractor immunity claims that
"[t]he Government made me do it." In re Joint E. & S. Dist.
N.Y. Asbestos Litig., 897 F.2d 626, 632 (2d Cir. 1990).
Here, although the BOP issued specifications to which CSC had to
adhere, it is not these specifications that are the subject of
plaintiffs' claims. The acts that plaintiffs allege demonstrate CSC's
negligence most obviously, the failure to discharge Correa after
Womble allegedly reported his improper conduct to Arias were not
mandated by the BOP. Even plaintiffs' claim that CSC's training practices
were deficient could not be subject to a government contractor immunity
defense. While the BOP may have required that CSC institute some training
practices, See Nelson-Dabo Aff. ¶¶ 19-21, nothing stopped
CSC from instituting more stringent training practices. Moreover, CSC has
put forth no evidence that the BOP subsequently ratified CSC's particular
training practices. See Lewis v. Babcock Indus., Inc., 1992 WL
142751, at *5 (S.D.N.Y. June 8, 1992) ("[G]overnment performance
specifications are sufficient to establish approval, provided that the
government subsequently reviewed and approved the design chosen by the
private contractor. . . . Rubber stamping does not constitute approval
because the contractor, not the government, must exercise discretion over
the design feature." (citations omitted)), aff'd, 985 F.2d 83
(2d Cir.) cert. denied, 509 U.S. 924 (1993).
In sum, CSC is not entitled to government contractor immunity.
CSC's motion for summary judgment (Docket #47) is granted in part and
denied in part. Plaintiffs may not assert at trial any theory of
vicarious liability. Also, their negligent hiring claims are dismissed.
CSC's motion is denied in all other respects.