     14-1124
     Doe v. Montefiore Medical Center

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of March, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                LAURA TAYLOR SWAIN,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Jane Doe,
14                 Plaintiff-Appellant,
15
16                    -v.-                                               14-1124
17
18       Montefiore Medical Center, Montefiore
19       Medical Group, Montefiore Health
20       System, Inc.,
21                Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
                  The Honorable Laura Taylor Swain, of the United
         States District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             JEFFREY M. HERMAN, Herman Law,
 2                              Boca Raton, Florida.
 3
 4   FOR APPELLEES:             JON D. LICHTENSTEIN (with Laura
 5                              E. Rodgers, on the brief) Gordon
 6                              & Silber, P.C., New York, New
 7                              York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Southern District of New York (Failla, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Plaintiff-appellant Jane Doe appeals from a judgment of
17   the United States District Court for the Southern District
18   of New York (Failla, J.)1 dismissing some claims on summary
19   judgment and dismissing the remaining claims with prejudice
20   (by stipulation of the parties). We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history, and the issues presented for review.
23
24        It is undisputed on this record that the assailant, Dr.
25   Richard Saulle, was employed by defendants, and that the
26   sexual assault on the plaintiff took place on defendants’
27   premises.
28
29        “To state a claim for negligent supervision or
30   retention under New York law, in addition to the standard
31   elements of negligence, a plaintiff must show: (1) that the
32   tort-feasor and the defendant were in an employee-employer
33   relationship; (2) that the employer ‘knew or should have
34   known of the employee’s propensity for the conduct which
35   caused the injury’ prior to the injury’s occurrence; and (3)
36   that the tort was committed on the employer’s premises or
37   with the employer’s chattels.” Ehrens v. Lutheran Church,
38   385 F.3d 232, 235 (2d Cir. 2004) (quoting Kenneth R. v.


         1
              The claims at issue in this appeal were resolved
     in an earlier decision and order of the United States
     District Court (McMahon, J.), but the case was reassigned to
     Judge Failla before entry of final judgment.
                                  2
 1   Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 793
 2   (App. Div. 2d Dep’t 1997)) (internal citations omitted).
 3   This case therefore turns on whether that assault was
 4   foreseeable.
 5
 6        New York law appears to take differing approaches
 7   relating to foreseeability in cases alleging that sexual
 8   assault by an employee was foreseeable to the employer. In
 9   some cases, the plaintiff must offer evidence that the
10   employer knew (or should have known) of the employee’s
11   “propensity . . . to engage in inappropriate sexual
12   conduct.” Id. In other cases, the plaintiff has been
13   required to show only that the employer knew (or should have
14   known) of the employee’s propensity to engage in physical
15   assault, whether or not such conduct was of a sexual nature.
16   See, e.g., Dawn VV v. State of New York, 850 N.Y.S.2d 246,
17   249 (App. Div. 3d Dep’t 2008) (“Although defendant may not
18   have been aware that a sexual assault was likely to occur if
19   residents were left unsupervised, it was foreseeable that a
20   resident could engage in some type of physical assault
21   against another resident” where safety plans called for
22   residents to be supervised); T.W. v. City of New York, 729
23   N.Y.S.2d 96, 98 (App. Div. 1st Dep’t 2001) (“[I]t cannot be
24   said that, as a matter of law, it is unforeseeable that a
25   person with convictions for assault would commit a sexual
26   assault” when that person is employed by an organization
27   that serves children).
28
29        We need not decide this issue here. The district court
30   correctly determined that, on this record, no reasonable
31   jury could conclude that defendants knew or should have
32   known of Dr. Saulle’s propensity to commit an assault--let
33   alone a sexual assault. Accordingly, summary judgment in
34   favor of defendants was appropriate on the negligent
35   retention and supervision claim under New York law. See
36   Rodriguez v. United Transp. Co., 677 N.Y.S.2d 130, 132 (App.
37   Div. 1st Dep’t 1998) (entering summary judgment for
38   defendant because plaintiff presented no evidence of
39   employee’s “history of a propensity for violence or sexual
40   misconduct”).
41
42        Doe’s breach of fiduciary duty claim fails for the same
43   reason. See Padilla v. Verczky-Parker, 885 N.Y.S.2d 843,
44   846 (App. Div. 4th Dep’t 2009); see also Ehrens, 385 F.3d at
45   236 n.2.

                                  3
1        For the foregoing reasons, and finding no merit in
2   Doe’s other arguments, we hereby AFFIRM the judgment of the
3   district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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