Ronald
P. Berman, Esq., Attorney for Plaintiffs
Hardin, Kundla, McKeon & Poletto, P.A. Attorney for
Defendant Developmental Disabilities Inst. Lynn
Poster-Zimmerman, ESQ. Guardian Ad Litem
HON.
JOSEPH A. SANTORELLI, J.S.C.
Upon
the following papers numbered 1 to 25 read on this
motion for summary judgment: Notice of Motion/ Order
to Show Cause and supporting papers 1-15; Notice of
Cross Motion and supporting papers; Answering Affidavits and
supporting papers 16-22; Replying Affidavits and
supporting papers 23-25; Other; (and after hearing
counsel in support and opposed to the motion) it is,
ORDERED that the motion by defendant Developmental
Disabilities Institute, Inc. for an order pursuant to CPLR
3212, granting summary judgment dismissing the complaint
against it, is granted.
This is
an action to recover damages for personal injuries, inter
alia, allegedly sustained by plaintiff Manny Ramos
("the plaintiff") on August 17, 2009 at a
Waldbaum's store located in Smithtown, New York when he
was assaulted by Richard Cox, an intellectually and
developmentally disabled Waldbaum's employee. According
to the plaintiff, he was retrieving a cart from the parking
lot and walking toward the store when Cox, without apparent
provocation, began yelling obscenities at him, approached him
from behind and, ultimately, struck him near the store
entrance.
In
their complaint and bill of particulars, the plaintiffs
assert numerous theories of liability based in negligence,
including that Developmental Disabilities Institute, Inc.
("DDI") was negligent in placing or facilitating
Cox's placement as a Waldbaum's employee without
undertaking an appropriate inquiry concerning his
temperament, emotional stability or competence, in failing to
properly counsel, treat, train, supervise, and instruct him,
in causing and allowing him to be assigned to a job which
placed him in regular contact with the public, in ignoring,
concealing or otherwise failing to acknowledge prior
incidents of antisocial and improper conduct and behavior on
his part, and in failing to provide him and his employer with
adequate post-hiring support, coaching, and oversight.
Now,
discovery having been completed, DDI moves for summary
judgment, claiming that it did not place Cox at
Waldbaum's, negligently or otherwise, and that it owed no
duty of care to the plaintiff. In support of its motion, DDI
submits the affidavit of Caitlin McCarthy, who is currently
employed by DDI as a Medicaid services coordinator. According
to her affidavit, DDI is an organization that provides
services to individuals with developmental disabilities,
referred to as "consumers." At the time of the
incident, she was working for DDI as an employment
specialist, and her duties required her to work with
consumers who were seeking employment as well as those who
were already employed at various sites, including visiting
them at their places of employment and consulting with their
supervisors. Consumers were referred to the employment
specialists by their Medicaid services coordinators or
through the New York State Office of Vocational and
Educational Services for Individuals with Disabilities
(VESID), currently known as the Adult Career and Continuing
Educational Services-Vocational Rehabilitation, a
governmental agency that helps disabled individuals achieve
and maintain employment through training, education,
rehabilitation, and career development. In 2009, DDI's
role was to assist consumers seeking employment with their
applications and interviews; it did not make recommendations
to prospective employers regarding its consumers, was not
involved in the hiring of its consumers for jobs in the
community or in determining the positions for which they
might be hired, did not direct or supervise its consumers at
their places of employment, and did not have the authority to
terminate a consumer, change his or her position, or
determine any other circumstance of employment. In 2009, she
had a caseload of 35-40 consumers, including Richard Cox.
When Cox was assigned to her, he was already working at
Waldbaum's. During the time she worked with Cox, she
would visit him twice a month at the job site, and each visit
would last no longer than 15 or 30 minutes. Based on the DDI
records submitted with her affidavit, it was one of Cox's
goals to refrain from yelling and cursing at co-workers and
customers when he became anxious; she helped him with calming
techniques and, more generally, provided support with daily
living skills, socialization, and communication.
DDI
also submits the affidavit of Americo Spagnuola, who has been
employed by DDI as a Medicaid services coordinator since
February 2006. His job duties are to advocate for individuals
with developmental disabilities and link them to services
they may require in the community. He began providing
services for Richard Cox in or shortly after 2006 and has
done so continually since then. Cox began working at
Waldbaum's in December 2000. Cox's employment was
originally funded by VESID, which determines if a
developmentally disabled person is able to work. Once VESID
deems a person capable of working, it reaches out to a
not-for-profit agency, such as DDI, to provide that person
with vocational support services. In 2009, Cox's job was
to retrieve shopping carts from the parking lot. He visited
with Cox at Waldbaum's 13 times between January 8, 2008
and July 7, 2009. During his visits, he occasionally observed
Cox curse and talk loudly to himself, although he never
observed him act violently with anyone, and did not recall
anyone from Waldbaum's ever alerting him of any outburst
of anger, cursing or violence from Cox. While aware that Cox
had previously hit his own mother, Spagnuola did not know
when this had occurred and was never notified whether Cox had
ever hit anyone other than his mother prior to August 17,
2009. According to DDI records, it appears that Cox was
living with his mother in a private residence in Bay Shore
for approximately two years prior to the incident.
The
plaintiffs oppose the motion, claiming that DDI did indeed
assume a legal duty, not only to Richard Cox, but also to his
employer and, by extension, its customers, including the
plaintiff. In opposing the motion, the plaintiffs rely on
portions of the deposition testimony given by Caitlin
McCarthy and Americo Spagnuola. According to McCarthy, she
and Richard Cox's "team" worked with him on
coping skills to refrain from yelling and cursing at
co-workers and customers, like walking away or taking a
minute; she acknowledged, however, that this goal was not
achieved prior to August 17, 2009. Spagnuola testified at his
deposition that in or about 2008, he observed that Cox was
experiencing increased difficulty dealing with anger, arising
from his limited ability to communicate and exhibited by his
cursing in a louder than usual tone of voice. To address the
problem, he assisted Cox with obtaining psychiatric services,
took him to some of his psychiatrist appointments, spoke with
his mother, and communicated with the vocational department.
At some point, Cox was prescribed medication to address his
anger issues, but there were times he did not take his
medication, at which times he was more prone to outbursts of
anger; Spagnuola, however, did not discuss this with anyone
at Waldbaum's, nor did he recommend that Cox be placed in
a different employment environment.
The
plaintiffs also submit the expert affidavit of Michael B.
Wolf, who describes himself as "a vocational
rehabilitation counselor, a training coordinator for
professional staff serving individuals with disabilities and
a program services administrator for individuals with
developmental disabilities." Based on his review of
DDI's records, he concludes that DDI failed to follow
good and accepted practice and breached its duties and
responsibilities by failing to address Cox's history of
profane verbal outbursts and physical violence, to learn all
there was to learn about his mental condition, to follow up
with the medication prescribed for him to control his anger,
to formulate a concrete proposal to modify his behavior, or
to work with his employer to have him reassigned to a
position that would insulate him from frequent public
contact.
"It
is well established that before a defendant may be held
liable for negligence it must be shown that the defendant
owes a duty to the plaintiff" (Pulka v Edelman,
40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 394 [1976]). "To
prove a prima facie case of negligence, a plaintiff must
demonstrate the existence of a duty, a breach of that duty,
and that the breach of such duty was a proximate cause of his
or her injuries" (Fox v Marshall, 88 A.D.3d
131, 135, 928 N.Y.S.2d 317, 320 [2011]). "In the absence
of duty, there is no breach and without a breach there is no
liability" (Pulka v Edelman, supra at
782, 390 N.Y.S.2d at 395). "Foreseeability of injury
does not determine the existence of duty" (Eiseman v
State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608,
613 [1987]). Unlike foreseeability, which is generally a
factual issue, "the duty owed by one member of society
to another is a legal issue for the courts"
(id. at 187, 518 N.Y.S.2d at 613).
As a
general rule, a defendant "has no duty to control the
conduct of third persons so as to prevent them from harming
others, even where as a practical matter defendant can
exercise such control" (D'Amico v Christie,
71 N.Y.2d 76, 88, 524 N.Y.S.2d 1, 6 [1987]); typically,
liability for the negligent acts of third persons arises only
when the defendant has both the authority and ability to
control the actions of such persons (Purdy v Public
Adm'r of County of Westchester, 72 N.Y.2d 1, 530
N.Y.S.2d 513 [1988]). It is also recognized, however, that
there exist special circumstances in which there is
sufficient authority and ability to control the conduct of
third persons that we have identified a duty to do so. Thus,
we have imposed a duty to control the conduct of others where
there is a special relationship: a relationship between
defendant and a third person whose actions expose plaintiff
to harm such as would require the defendant to attempt to
control the third person's conduct; or a relationship
between the defendant and plaintiff requiring defendant to
protect the plaintiff from the conduct of others.
(id. at 8, 530 N.Y.S.2d at 516). Such
"special" relationships include those between
employers and employees, parents and children, and common
carriers and their passengers (id.). "A
critical consideration in determining whether a duty exists
is whether the defendant's relationship with either the
tortfeasor or the plaintiff places the defendant in the best
position to protect against the risk of harm" (Davis
v South Nassau ...