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Gibbs v. City of New York

May 28, 2010


The opinion of the court was delivered by: Glasser, United States District Judge


Before the Court is the plaintiff's motion for partial summary judgment seeking an Order that would declare that the defendant City of New York would be answerable under the doctrine of respondeat superior should defendant Eppolito be found liable for the malicious prosecution of the plaintiff as alleged in Count X of the complaint.

The undisputed facts are taken from the statement of them in plaintiff's Local Rule 56.1 Statement in paragraphs 12-16, 19-20 which are admitted by the Defendants' Response to it. Those facts are that the Robertson homicide investigation was reassigned to Detective Eppolito early on November 4, 1986, the day on which her body was found. The reassignment was made by Inspector Richter in the presence of Detective Fairchild and Sargeant Muldoon. Detective Eppolito continued as the assigned detective through the conclusion of the criminal trial in February, 1988 at which the plaintiff was convicted, more than fourteen months after Ms. Robertson's body was discovered. Detective Eppolito was assisted in the investigation by Detective Louis Rango who was assigned to the Brooklyn South Homicide Bureau and by other detectives. Eppolito reported that he conducted sixteen interviews, prepared thirty-eight DD5s between November 4, the day Robertson's body was discovered and November 14, 1986, the day on which the plaintiff was arrested. Detective Rango accompanied Detective Eppolito on a number of the interviews. Some of the DD5s were prepared by Eppolito at the 63rd precinct and several of them were signed off on by his direct supervisor Sargeant Muldoon. During the course of the investigation and before trial Detective Eppolito met in the precinct with Assistant District Attorney Bakken and with Assistant District Attorney Andrew Dember of the Kings County District Attorney's Office. During the investigation, Eppolito maintained a Robertson investigation file together with other homicide files in an unlocked file cabinet in the Sargeant's Office which was also kept unlocked. That file was available to any detective in the precinct. During the course of the investigation, other detectives typed DD5s which were also maintained in the file. No representative of the City of New York ever suggested to Eppolito that any of his activities in connection with the Robertson investigation were outside the scope of his duties and responsibilities as a NYPD detective.


Although volumes can be filled with nothing more than the reiterated standard applicable for determining a motion for summary judgment, convention requires that it be stated again to be that the motion may be granted as a matter of law where the record shows "that there is no genuine issue as to any material fact." Cited for elaboration of that simply-stated principle are, generally, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

Volumes could also be filled with nothing more than the reiterated doctrine of respondeat superior, which, stated in a nutshell is that "a master is 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 (1979). But as has been noted in an unrelated context, it is one thing to put that doctrine in a nutshell; it is quite another thing to keep it there. See, Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638 (1938). That truism was recognized long ago, in this context in Mott v. Consumers' Ice Co., 73 N.Y. 543 (1878) in which that Court observed that although, "[t]he general principles, by which the liability of the master to respond for the consequences of the wrongful acts of his servant . . . have . . . become quite familiar, . . . the only difficulty has been, and is, to apply them to the different circumstances under which the question arises." 73 N.Y. at 547. That difficulty was echoed more than a hundred years later in Riviello: "the rule may appear deceptively simple but, because it depends largely on the facts and circumstances peculiar to each case, it is more simply said than applied." 47 N.Y.2d at 302.

Instructive for the determination of this motion, however, is that Court's acknowledgment of the reality that social policy has wrought a measure of relaxation of the traditional confines of the doctrine (see Restatement, Agency 2d, § 219, Comment [a]). Among motivating considerations are the escalation of employee-produced injury, concern that the average . . . victim, when relegated to the pursuit of his claim against the employee, most often will face a defendant too impecunious to meet the claim, and that modern economic devices, such as cost accounting and insurance coverage, permit most employers to spread the impact of such costs (see Prosser, Torts [4th ed], § 69; Seavey, Agency, § 83). So, no longer is an employer necessarily excused merely because his employees, acting in furtherance of his interests, exhibit human failings and perform negligently or otherwise than in an authorized manner. Instead, the test has come to be " 'whether the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions.

47 N.Y.2d at 302 (citations omitted).

Judge Fuchsberg's observations were essentially those made almost 130 years ago by the then-to-be Justice O.W. Holmes. Jr. in the timeless, The Common Law (Little Brown, 1881) who wrote on p. 6:

A baker's man, while driving his master's cart to deliver hot rolls of a morning, runs another man down. The master has to pay for it. And when he has asked why he should have to pay for the wrongful act of an independent and responsible being, he has been answered from the time of Ulpian to that of Austin, that it is because he was to blame for employing an improper person. If he answers, that he used the greatest possible care in choosing his driver, he is told that that is no excuse; and then perhaps the reason is shifted, and it is said that there ought to be a remedy against some one who can pay the damages, or that such wrongful acts as by ordinary human laws are likely to happen in the course of the service are imputable to the service.

The foregoing is not to suggest that the Court endorses the imposition of liability without fault, based on a view that the deep pocket should pay for no other reason than that the wrongdoer was an employee. Turk v. McCarthy, 661 F. Supp. 1526 (E.D.N.Y. 1987) on which the City relies where the policeman's conduct was motivated by nothing more than intolerable hubris was such a case. Social policy does not support extending the boundary of traditional doctrines to encompass McCarthy-like conduct that is not "imputable to the service."

Recognizing the general rule that the question of whether a particular act was within the scope of employment is dependent on factual considerations and so is ordinarily one for the jury, the Court also recognizes that it may make that determination as a matter of law where the essential facts are not disputed. Pizzuto v. County of Nassau, 239 F. Supp. 2d 301, 314 (E.D.N.Y. 2003). Given the undisputed facts related above, the Court is driven to conclude as a matter of law, that the traditional doctrine of respondeat superior, is applicable to the City of New York, completely confident that no reasonable jury would fail to find that Eppolito was acting within the scope of his employment in maliciously prosecuting Gibbs.

An inquiry into the undeclared motives prompting the conduct of a policeman to determine whether he was acting within the scope of his employment, which the City would require, is not constructive. The test must be an objective, not a subjective one. That the test is an objective one is readily confirmed by an appraisal of the factors to be weighed in determining whether a given act is within the scope of employment, not one of which is subjective. See Riviello, 47 N.Y.2d at 303. Absent direct proof of an expressed intent to serve his own interest and not his master's, it falls to the Court or to the jury to divine the state of the servant's mind at the relevant time. That state of mind, intent, juries are routinely charged, is rarely established by direct proof but may be inferred from the surrounding facts and circumstances and from the servant's conduct. The determination thus of intent may be plainly speculative and give rise to questions of justice and fairness as Nelson v. American-West African Line, 86 F.2d 730 (2d Cir. 1936) (L. Hand, J.) demonstrates. That case is frequently cited for the pronouncement that, "[a] principal is not chargeable with willful acts, intended by the agent only to further his own interest, not done for the principal at all. But motives may be mixed; men may vent their spleen upon others and yet mean to further their master's business; that meaning, that intention is the test." Id. at 731 (internal citations omitted). That action was brought against a ship owner by a seaman lying in his bunk a half-hour before he was to go on watch. The boatswain, returning from off-duty ashore where he got roaring drunk, struck the seaman across the face with a wooden bench, shouting as he did so, "Get up, you big son of a bitch, and turn to." The trial judge dismissed the case at the end of the plaintiff's proof on the ground that at the time of the assault the boatswain was not acting for the ship. That was the only issue on appeal where that judgment was reversed for the reason I set out at some length:

[T]he boatswain was blind drunk, and through his clouded mind all sorts of vague ideas may have been passing; the fact that he had made himself incompetent to further the ship's business was immaterial, the owner had selected him to command, whatever his defects and his addictions. If he really meant to rouse the plaintiff and send him upon duty, if he really meant to act as boatswain and for the ship, however imbecile his conduct it was his master's. We are disposed to think that when he told him not only to get up, ...

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