Sandra M. v. St. Luke's Roosevelt Hospital Center

— 876 — In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated June 18, 2004, as granted the motion of the defendant St. Luke’s Roosevelt Hospital Center for summary judgment dismissing the complaint insofar as asserted against it, and (2) from a judgment of the same court entered August 12, 2004, which, upon the order, dismissed the complaint insofar as asserted against the defendant St. Luke’s Roosevelt Hospital Center. Ordered that the appeal from the order is dismissed, without costs or disbursements; and it is further, Ordered that the judgment is affirmed, without costs or disbursements. The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]). On July 20, 2001, the plaintiff Sandra M. was admitted to the defendant St. Luke’s Roosevelt Hospital Center (hereinafter the Hospital) after attempting to commit suicide by taking an overdose of medication. The Hospital placed Sandra M. on suicide watch, which entailed constant, one-on-one observation by a nursing assistant. On the night of July 22, 2001, the defendant Ricardo Cortez, who had been placed with the Hospital by the defendant United Staffing System, Inc. (hereinafter United), a temporary employment agency, was the nursing assistant assigned to watch Sandra M. During his shift, Cortez allegedly sexually assaulted Sandra M. The “Temporary Placement Agreement” between the Hospital and United provided that the personnel referred to the Hospital by United “are employees solely of [United],” and that United was responsible for screening those employees for “required education, experience, license, and certification.” The agreement further provided that “the referral of an individual for duties at [the Hospital] shall be deemed [United’s] warranty that such individual is appropriately certified, or licensed, as the case may be, and has been determined competent to perform the duties for which he/she is being supplied to [the Hospital].” The Hospital had “sole discretion as to whether or not to accept referred personnel for a designated position.” — 877 — Sandra M. and her husband commenced this personal injury action against the Hospital, United, and Cortez. The complaint did not articulate any particular cause of action, but alleged that the Hospital was negligent in essentially two ways. First, its “written policies and procedures governing the staffing and operation of its suicide watch” were “inadequate as drafted to protect medicated and vulnerable patients from reasonably foreseeable risks of harm.” Second, it “failed to independently evaluate the background, training, orientation and ability of the staff provided by United, and, instead, simply accepted such personnel without making an independent good faith judgment that such personnel were competent and suitable and would not engage in conduct harmful to vulnerable, medicated patients.” The Supreme Court granted the Hospital’s motion for summary judgment dismissing the complaint insofar as asserted against it. We affirm. An employer is not liable under the doctrine of respondeat superior for torts committed by an employee for purely personal reasons unrelated to the furtherance of the employer’s business (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]; Mataxas v North Shore Univ. Hosp., 211 AD2d 762 [1995]). Since the plaintiffs do not allege that Cortez negligently performed his job, by, for example, failing to keep Sandra M. constantly within his sight, or that his alleged sexual misconduct was somehow related to the furtherance of the Hospital’s business, the Hospital cannot be held vicariously responsible for Cortez’s actions. Furthermore, as a general rule, a principal is not liable for the wrongful acts of an independent contractor it retains (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]). The courts, however, have recognized numerous exceptions to the general rule (see Feliberty v Damon, 72 NY2d 112, 118 [1988]). For example, in Mduba v Benedictine Hosp. (52 AD2d 450, 453 [1976]), the court held that a hospital could be vicariously liable for the negligence of an emergency room doctor, even if he was an independent contractor, since “the decedent entered the hospital for hospital treatment,” the hospital held itself out as a provider of hospital services, and patients were entitled to assume that the doctors who treated them were doing so on behalf of the hospital (Mduba v Benedictine Hosp., supra at 453). Similarly, in Kleeman v Rheingold (supra), the Court of Appeals held that the defendant law firm could be held liable for the failure of the process serving company with which it contracted to properly serve papers, resulting in the dismissal of a client’s action. The Court reasoned that the duty to properly serve pro — 878 — cess was so integral to the practice of law as to be nondelegable, and that the law firm therefore could not avoid liability for the breach of that duty by “farming out” the task to an independent contractor (Kleeman v Rheingold, supra at 275). Like any other property owner, a hospital has a duty to protect persons lawfully present on its premises from the reasonably foreseeable criminal or tortious acts of third persons (see Miller v State of New York, 62 NY2d 506, 513-514 [1984]; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 518-519 [1980]). A hospital also has a special duty “to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252 [2002]). Both theories of liability require a showing that the wrongdoer’s conduct was foreseeable to the defendant (see N.X. v Cabrini Med. Ctr., supra at 253; Nallan v Helmsley-Spear, supra at 519). A hospital’s duty to protect patients and visitors does not arise from the hospital’s status as an employer, and a hospital acting in its capacity as caretaker is not necessarily responsible for knowing or foreseeing matters that an employer could be expected to know or foresee. For example, in Kirkman v Astoria Gen. Hosp. (204 AD2d 401 [1994]), the plaintiff was raped by a security guard employed by Burns International Security Services (hereinafter Burns), who was on duty at a hospital where the plaintiff had been visiting a patient. This Court determined that the hospital could not be held liable, as a possessor of realty, for a breach of the duty to protect the visitor from the reasonably foreseeable criminal acts of third persons, since there was “no evidence in the record that [the hospital] had any knowledge of, or contact with, the [Burns] employee that would have made the employee’s criminal act foreseeable to the hospital” (Kirkman v Astoria Gen. Hosp., supra at 402). A cause of action for negligent hiring, by contrast, is based upon the defendant’s status as an employer. Such a claim requires the employer to answer for a tort committed by an employee against a third person “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” (Kirkman v Astoria Gen. Hosp., supra at 403; see Carnegie v J.P. Phillips, Inc., 28 AD3d 599, 600 [2006]; Bellere v Gerics, 304 AD2d 687 [2003]; Ray v County of Delaware, 239 AD2d 755 [1997]; Mataxas v North Shore Univ. Hosp., supra). “The employer’s negligence lies in his having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had — 879 — the employer taken reasonable care in making decisions respecting the hiring and retention of his employees” (Detone v Bullit Courier Serv., 140 AD2d 278, 279 [1988]). Thus, a negligent hiring claim does not require the existence of any particular relationship between the plaintiff and the defendant employer (see Rodriguez v United Transp. Co., 246 AD2d 178, 180 [1998]). Rather, the defendant is responsible for the harm its negligently hired employee causes to any third party. In this case, the plaintiffs, in effect, assert a claim that the Hospital negligently hired Cortez, and thus invoke the exception to the general rule of nonliability for the acts of an independent contractor which provides that the principal may be held liable for “negligence ... in selecting, instructing or supervising the contractor” (Kleeman v Rheingold, supra at 274).1 The evidence submitted in support of and in opposition to the Hospital’s motion for summary judgment, however, demonstrated that, even if United was aware of certain facts about Cortez that would have caused a reasonably prudent employer to further investigate his background, the Hospital had no such knowledge. Thus, even if the Hospital could be deemed to have “hired” Cortez, the Hospital had no reason to foresee Cortez’s sexual misconduct (see Mataxas v North Shore Univ. Hosp., supra). Our dissenting colleague advances an additional rationale: Because the Hospital did not ask United for Cortez’s employment history or the results of any background check, the Hospital failed to establish its freedom from liability for negligent supervision or negligent instruction of its independent contractor, i.e., United. In our view, such a theory of liability is not viable in this case. First, the duty to investigate a prospective employee, or to “institute specific procedures for hiring employees,” is triggered only when the employer “knows of facts that would lead a reasonably prudent person to investigate the prospective employee” (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 163 [1997], cert denied 522 US 967 [1997]; see Carnegie v J.P. Phillips, Inc., supra at 600; T.W. v City of New York, 286 AD2d 243, 245 [2001]). The record in this case does not show that the Hospital had any reason to request an employment history or background check for Cortez. Second, and more fundamental, the theory that a principal — 880 — has negligently supervised or instructed an independent contractor normally entails supervision or instruction as to the performance of the principal’s work—that is, the work that is inherent in the principal’s business or “ ‘accepted in the reasonable belief that the services are being rendered by the [principal]’ ” (Miles v R & M Appliance Sales, 26 NY2d 451, 454 [1970], quoting Restatement [Second] of Torts, § 429). It is not alleged in this case that the Hospital negligently supervised or instructed United in the provision of health care services. Rather, the theory articulated in the dissent is that the Hospital negligently supervised or instructed United in the business of hiring temporary staff members. That task, however, is collateral to the Hospital’s main function. Unlike the emergency room doctor in Mduba and the process server in Kleeman, United was not engaged in its principal’s primary business. Instead, the Hospital retained United to perform the important, but ancillary, function of supplying the Hospital with staff, a function which included conducting any necessary screening and background checks. We are aware of no authority for the proposition that supplying staff is so integral to the provision of health care services that a hospital may not delegate that task, and the liability for performing it negligently, to an independent contractor (cf. Kleeman v Rheingold, supra at 275).2 Our dissenting colleague emphasizes that, although the Hospital’s contract with United provided that Cortez was an employee of United, the Hospital was afforded “sole discretion as to whether or not to accept referred personnel for a designated position.” In our view, however, “accept [ing] referred personnel” is not the same as hiring personnel. We do not understand the Hospital’s reservation of the “discretion” to — 881 — accept or reject referred employees as imposing upon the Hospital a duty to independently screen those employees. Such a reading of the contract would essentially require the Hospital to replicate the work of United, thus defeating the purpose of retaining United. The Hospital relied on United to perform its hiring function for certain positions, and that reliance was reasonable as long as United continued to supply workers who exhibited no inappropriate behavior or propensities (see Maristany v Patient Support Servs., 264 AD2d 302, 303 [1999] [“an employer has the right to rely on the supposed qualifications and good character of the contractor”]). Generally, in order for a party to be charged with foreseeing criminal or tortious conduct on its premises, there must be some prior occurrence of such conduct (see Nallan v Helmsley-Spear, supra at 519). In this case, there is no evidence in the record that United had ever before referred to the Hospital an employee who had committed any kind of assault, sexual offense, or other impropriety against a patient or any other person present at the Hospital. Thus, the Hospital established that it had no duty to independently screen employees like Cortez who were recommended by United, and that it did not know or have reason to know of any propensity on Cortez’s part to engage in sexually assaultive behavior. Moreover, as the Supreme Court correctly concluded, the Hospital demonstrated that any deficiency in its “written policies and procedures governing the staffing and operation of its suicide watch” was not a proximate cause of the plaintiffs’ alleged injuries. The Hospital thereby made a prima facie showing of its entitlement to judgment as a matter of law. In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the Hospital’s motion for summary judgment dismissing the complaint insofar as asserted against it. Prudenti, EJ., Florio and Lunn, JJ., concur. Footnotes [1] This “exception” is not really an exception at all, since it holds the principal responsible for its own acts or omissions, rather than holding it vicariously liable for the acts or omissions of the independent contractor (see Kleeman v Rheingold, supra at 274 n 1). [2] In Kirkman v Astoria Gen. Hosp, (supra), this Court dismissed the negligent hiring claim against Burns because there was no evidence that it had any knowledge of the security guard’s propensity to commit rape, despite having “conducted a routine, but thorough, pre-employment check into the employee’s background,” which revealed no prior criminal history (id. at 403). While there is no evidence that United conducted a similar background check in this case, the significance of the Kirkman decision is that it imposed no duty upon the hospital to perform such an investigation. Although the duties of the security guard in Kirkman were collateral to the hospital’s primary function of providing health care services, whereas Cortez’s task of keeping watch over Sandra M. was an integral part of the Hospital’s health care function, we ascribe no significance to this distinction, because Cortez’s misconduct was outside the scope of his employment, and because any duty on the Hospital’s part to scrutinize Cortez’s background was no greater than that of the hospital in Kirkman to scrutinize the background of the security guard, who presumably had as much access to vulnerable patients and others lawfully present in the hospital as Cortez had.