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The status of the individual performing services for a public employer may be critical in determining liability

The status of the individual performing services for a public employer may be critical in determining liability
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.

A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician ?touched and fondled her breast.? The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was ?an independent contractor and not an employee of the school district? and that (b) the district ?had no knowledge of any prior sexual propensities? of the physician.

Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee?s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.

The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.

Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, ?[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.?

The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged ?loss of services.?

Full post as published by New York Public Personnel Law on August 10, 2010 (boomark / email).