At A Glance:
Summary: The plaintiff in Eaton v Fiot0 was injured when a diner security guard attacked him, and although the jury found liability against the diner owners, the verdict sheet failed to ask whether the guard was acting within the scope of his employment at the time of the attack. Thus, the verdict sheet interrogatories that the trial court gave the jury allowed the jury to find the defendants liable for the security guard’s acts based solely on his status as a special employee, without determining whether he was acting within the scope of his employment when he attacked the plaintiff.
Court: New York Appellate Division, Second Department
Decision Date: June 11, 2025
Case: Eaton v Fiotos, 239 AD3d 704 (2d Dept 2025)
Topic: Jury Verdict Sheets, Special Interrogatories, Premises Liability
The Court’s Position:
The Second Department reversed a judgment and granted the defendants’ CPLR 4404(a) motion to set aside the jury verdict on the issue of liability in the interest of justice. The Court held that the trial court failed to instruct the jury properly on whether the security guard acted within the scope of his employment. This omission significantly impacted the liability assessment, requiring a new trial.
From A Claims Perspective:
This decision is a strong reminder that vicarious liability requires more than proof that the tortfeasor was an employee or special emploee. The verdict sheet must force the jury to decide the missing liability link: whether the employee was acting within the scope of employment when the intentional act occurred.
What Happened:
The plaintiff alleged that he was injured at a diner in Brooklyn after an encounter with a diner employee, who was working as a security guard.
According to the plaintiff, he left the diner to use an ATM across the street after receiving his bill. The security guard told him he had to return to pay. When the plaintiff came back into the diner, the security guard allegedly grabbed him, knocked him to the floor, and choked him.
After a liability trial, the jury found in favor of the plaintiff. A separate damages trial resulted in awards for past pain and suffering, future pain and suffering, and future medical expenses. The diner defendants moved under CPLR 4404(a) to set aside the liability verdict and obtain a new trial, arguing that the jury was not asked a critical question: whether the security guard was acting within the scope of his employment when he attacked the plaintiff.
The Decision:
The Second Department reversed the judgment and ordered a new trial on liability.
The Court held that the trial court should have included a verdict-sheet question asking whether the security guard employee was acting within the scope of his employment when he attacked the plaintiff. The jury was only asked whether the security guard was an employee or special employee of the diner and whether he committed a battery. That was not enough.
The jury could have found the diner liable simply because the security guard worked there, without deciding whether his conduct was connected to his job duties. Because scope of employment is a required element of respondeat superior liability, the omission prejudiced the diner defendants and required a new liability trial.
The Court, however, affirmed the damages findings. It held that the pain-and-suffering awards did not materially deviate from reasonable compensation, and the future medical expenses award was not against the weight of the evidence.
Why This Matters:
Employee Status Alone Does Not Establish Vicarious Liability
A plaintiff must also prove that the empoyee was acting within the scope of employment when the tort occurred.
Verdict Sheets Can Decide Appeals
If the verdict sheet omitts an essential liablity element, the defense may have a strong CPLR 4404(a) argument and appellate issue.
Intentional Tort Cases Require Close Claims Handling
Assault, battery, security-guard conduct, and workplace altercations often turn on whether the act furthered the employer’s business or was personal.
Practice Pointers:
- Do not treat employment status as the end of the analysis
- Always evaluate whether the employee’s conduct was within the scope of employment
- Request a specific verdict-sheet interrogatory.
- In respondeat superior cases, ask the court to require a jury finding on scope of employment
- Preserve the issue at the charge conference
- Defense counsel should object clearly if the verdict sheet allows liability without an essential element
- Separate negligent hiring/supervision theories from vicarious liability theories. They may involve different factual questions and different defenses
- In security-guard cases, focus discovery on job duties, instructions, training, authority, and whether force was permitted or prohibited
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Matthew Lerner is a New York civil litigation and appellate attorney at Gerber Ciano Kelly Brady LLP and the publisher of New York Civil Law. He writes about New York appellate decisions, insurance coverage, Labor Law, and litigation strategy for claims professionals and trial attorneys.
Primary Authority:
The Court relied on New York respondeat superior principles, including the rule that an employer is liable for an employee’s tort only when the employee acts within the scope of employment. The Court also applied CPLR 4404(a), which permits a verdict to be set aside in the interest of justice where a trial error affects a substantial right.
Sources:
- CPLR 4404
- Duran v Temple Beth Sholom, Inc., 155 AD3d 690 (2d Dept 2017)
- Norwood v Simon Prop. Group, Inc., 200 AD3d 891 (2d Dept 2021)
- Llorente v Wnorowski, 204 AD3d 656 (2d Dept 2022)
Questions This Case Answers:
- When is an employer vicariously liable for an employee’s intentional tort in New York?
- Is proof that a tortfeasor was an employee enough to impose respondeat superior liability?
- Must a jury decide whether an employee acted within the scope of employment?
- Can a verdict be set aside when the verdict sheet omits an essential element of vicarious liability?
- What must a defendant preserve during the charge conference in a respondeat superior case?
- How does CPLR 4404(a) apply to verdict-sheet errors?
- Can a damages award be affirmed even when liability is retried?
- Does CPLR Article 16 require apportionment in an intentional battery case?
Related Topics:
Respondeat Superior, Scope of Employment, Intentional Torts, Security Guard Liability, Premises Liability, Verdict Sheets, Jury Interrogatories
Photo Credit to Vitaly Gariev