Client Advisory

The New York Court of Appeals affirmed summary judgment in favor of the defendant employer, Madison County, holding that, “the evidence was insufficient to prove the [defendant] was on notice of the abuse.” In doing so, the Court provided guidance on the sufficiency of evidence proffered to establish an issue fact as to a defendant’s constructive notice of an employee’s misconduct. The decision was 6-1, with Judge Rivera dissenting.

Plaintiff was an 11 year old in the care of Madison County’s Department of Social Services. He alleged that over a period of three years he was sexually abused by his caseworker who had also abused several other children to whose cases he was assigned. The alleged sexual abuse occurred in the caseworker’s employer-issued car or at roadside stops or motels as the caseworker was driving Plaintiff to court proceedings, appointments, and placements. It was undisputed that Madison County had no actual knowledge.

Plaintiff filed suit against Madison County under the claim-revival provision of the Child Victims Act for its negligent hiring, supervision, and retention of the caseworker. Madison County moved for summary judgment and submitted testimony which included that of a caseworker supervisor who testified that while she reviewed caseworkers’ files she did not do so as regularly as she should have, and that the County had no handbook for how caseworkers should perform their duties.

Plaintiff opposed the motion relying, inter alia, on this testimony to demonstrate deficient and “lax” supervision, absence of caseworkers’ notes, and absence of policies sufficient to create an issue of fact regarding Madison County’s liability for negligent supervision. Plaintiff argued that if the supervisor had been more attentive in reviewing employees’ case notes, she would have realized that the caseworker in question was not taking any notes of his time with Plaintiff, thereby realizing the caseworker’s untoward behavior.

The Court rejected that argument, noting the faulty assumption that the absence of notes would itself be suspicious. The Court further noted that Plaintiff did not claim that any records kept by the caseworker would have contained any evidence of the abuse, and highlighted the fact that the primary role of caseworkers in this context was to transport children and monitor their progress with the only demonstrated expectation of documentation requirements being for the purpose of vehicle availability, inventory, and usage purposes, and not to monitor the whereabouts of the children being transported.

The Court held, “[i]t is simply too speculative to suggest that increased review of those kinds of records would have put the County on notice of the abuse.” The Court further held, “…we have never held that a party can prove negligent supervision by stating the employer should have known an employee was likely to engage in dangerous conduct without evidence showing that any prior conduct, warnings, or signs of risk to that effect. References to generalized norms or practices alone are not sufficient where, as here, there is nothing in the record that indicates the County had any opportunity or reason to know about the abuse.” (internal quotation marks and citations omitted). Finally, the Court held that Madison County’s practices should be analyzed within the context of the standard of care that was reasonable at the time, stating, “[c]ontrary to the dissent’s position, we must evaluate the reasonableness of the County’s supervision and training by the then-prevailing standards, not today’s…”

Key Takeaways: The Court’s decision establishes that deficiencies in an employer’s policies and/or procedures may not in themselves evince the employer’s constructive notice of an employee’s misconduct. Clients should consider summary judgment in CVA claims where the Plaintiff has no evidence of known suspicious behavior akin to abuse or no evidence that had the employer’s policies and/or procedures been followed, they may plausibly have led to the employer’s notice of abuse or a propensity commit acts of abuse.