Written by Kate Belsito, Legal Intern at Sivin, Miller & Roche, LLP
In November 2019, the New York State Court of Appeals handed down its decision in Rivera v. State of New York, effectively setting forth a major hurdle for recovery under the theory of respondeat superior liability: the decision’s “so egregious” standard.
In its 4-3 decision, the Court concluded that the actions of three corrections officers—actions which resulted in permanent and serious injuries to an inmate—fell outside the scope of their employment, thus shielding New York State from liability. The majority reached this result by rationalizing that the use of force “was so egregious as to constitute a significant departure from the normal methods of performance of the duties of a correction officer as a matter of law” (Rivera v. State of New York, 142 N.E.3d 641, 646). And with that conclusion, Rivera sets new, and concerning, precedent. This “so egregious” standard, at least in theory, could result in completely backwards incentives for corrections officers, and disastrous implications for any potential victims: the “more heinous” the conduct, the farther afield it is from falling within the scope of employment.
There are several factors a court must take into account when addressing a scope of employment issue. These factors, relied upon in Rivera, were set out in Riviello, a 1979 New York Court of Appeals case: “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 anticipated” (Riviello v. Waldron, 47 N.Y.2d 297, 303).
In Rivera, the assault, as the majority saw it, was so horrible as to cross the line from what otherwise could be conceived of as an assault conducted within the “normal method of performance.” The incident satisfied the time, place, and occurrence factors, but despite this, it still fell outside scope. That is—the fact that the assault was so brutal is what ultimately insulated the State from liability.
Considering Rivera in light of one of Sivin, Miller & Roche’s ongoing cases may help to shed light on just how problematic the decision is. In John Doe v. State of New York (we have fictionalized the name of our client until the case is concluded), Mr. Doe claims he was assaulted by two corrections officers while they were on duty at a correctional facility. The officers claim that Mr. Doe inflicted the injuries upon himself. In order for Mr. Doe to ultimately prevail in his case, the claim must withstand Rivera’s tests. Specifically at issue here is whether the officers, if it is in fact proved that they did assault Mr. Doe, performed this assault within their scope of employment. That is, the assault cannot be “so egregious” so as to fall outside the scope of employment, and the use of force must have been an official response to some type of wrongdoing on the part of Mr. Doe that would in turn authorize the use of force on behalf of the officers.
What this means, then, is that it must be established that Mr. Doe himself did something “wrong.” Counterintuitive as it may seem, it is crucial to establish actions on the part of Mr. Doe that would warrant an authorized response from an officer in order for him to ultimately prevail.
Following the above, one of the practical limitations that Rivera sets forth is its requirement that claimants admit their own wrongdoing. No one, and especially those who are victims, like to admit fault. This poses a challenge for counsel, who must delicately encourage a claimant to sift through the events leading up to the alleged assault, in the hope that there was a triggering event that would lead to an authorized response involving use of force against the claimant.
And of course, even if it is established that Mr. Doe did act in such a way that would appropriately trigger an authorized use of force on the part of the corrections officers, it must be established that the officers did not get so carried away in their response so as to tip into the “so egregious” standard demarcated in Rivera. This then requires counsel to argue that the assault, despite horrible injuries, should not be characterized as too brutal, though brutal any assault is. And then there is counsel for the State’s position: if we take Rivera to its logical conclusion, it would be in the State’s interest for an assault to reach the level of brutality that would allow it to prevail on an “outside the scope” defense.
The Rivera decision poses numerous additional questions, including the question of respondeat superior liability pursuant to any additional officers responding to assaults. That question, in fact, might be the most troubling of all: Rivera concludes that the additional officers responding to the attack themselves fell outside of the scope of employment, simply because the original initiating officer fell outside the scope. This then prompts one to consider, as was done in a comment in the New York Law Journal, just how can we be comfortable with the fact that, at least in Rivera, the actions of three different corrections officers—all hired, trained, and maintained by New York State—are all actions that the State’s attorneys do not have to answer for?
Justice Rivera, in dissent, takes the position that there remained material factual questions as to what two officers who responded to the assault had in mind—was it that they were responding out of duty? It is, after all, the officer’s job to maintain peace. Or had these responding officers, similar to their colleague, gone rogue? The majority did not see it necessary to answer, let alone really even ask, such questions. And this is exactly what Justice Rivera hotly takes issue with. Justice Rivera acknowledges the majority’s mistake for what it is: “The majority’s conclusion that all three officers acted outside the scope of their employment because of the heinous nature and unforeseeability of this brutal assault (majority op at 8-10) adopts the State’s position that assisting [initial Officer] Wehby’s beating of claimant means that they too acted outside of their employment. This view collapses all the individual acts to focus on Wehby as the correction officer who inflicted the blows against claimant, without taking into consideration—as we must under respondeat superior and general tort principles—the State employer’s liability for the separate conduct of the officers who responded to the altercation. It also ignores the extent to which [the responding officers’] actions may have constituted an “escalation” from what they perceived to be the proper restraint of an inmate involved in an altercation with an officer” (Rivera v. State of New York, 142 N.E.3d at 659 [Rivera, J., dissenting]).
For now, it seems that Rivera poses more questions than it answers. Only time will tell of its real consequences as correctional facility assault cases make their way to court. Counsel and victims can only hope that the many problems Rivera poses will be illuminated in the future, perhaps to encourage the Court to heed Justice Rivera’s dissent, and walk-back from this drastic decision.