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A New York State Thruway toll collector who beat up a motorist because she apparently shortchanged the state on a nominal fee was acting within the scope of his employment at the time of the assault, a New York Court of Claims judge has held. Judge Edgar C. Nemoyer of Buffalo said the state bears respondent superior liability for the conduct of an employee who was attempting to do his job — collect the toll — even though his approach was unconventional and illegal. The court said in Seifert v. State, 100063, that the fact that the toll collector was performing his function, regardless that he was doing so in an obviously improper manner, exposes the state to full liability. The toll booth case arose on April 2, 1998, when Niki Lynn Seifert drove two exits further on the New York State Thruway than she normally would. Seifert, an athletic trainer assigned to a suburban Buffalo high school, usually got off the Thruway at the Hamburg exit after leaving work. The toll from her workplace to that exit was 15 cents. However, on April 2, 1998, Seifert went a little further on the Thruway, to the Eden/Angola exit. Seifert handed over the usual 15 cents and began to drive off when she heard the toll collector hollering at her and realized she had neglected to pay the full toll. Seifert backed up to pay the toll and apologize, but was confronted by the toll collector, John R. LaBelle. LaBelle left the toll booth and repeatedly punched Seifert in the face. Another patron called the police, and LaBelle was arrested. Seifert suffered soft tissue injuries and multiple abrasions. PERFORMING A JOB The sole issue before Judge Nemoyer was whether LaBelle was acting within the scope of his employment. Judge Nemoyer relied on the New York Court of Appeals’ 1979 holding in Riviello v. Waldron, 47 NY2d 297. In Riviello, the Court of Appeals said, according to Judge Nemoyer, that “an employer was no longer necessarily excused because an employee, while acting in furtherance of his/her interests, displayed human failings and performed negligently, or otherwise in an unauthorized manner.” Here, it was LaBelle’s job to collect the proper toll from Thruway patrons, and that is what he was attempting to do when he attacked Seifert, Judge Nemoyer said. “Obviously, the [state] did not authorize LaBelle’s assaultive behavior, which was certainly irregular and in disregard of instructions,” Judge Nemoyer said. “Nevertheless, it appears to the court that LaBelle was acting in furtherance of his employer’s business, and performing his assigned duties. Consequently, the court finds LaBelle was acting within the scope of his employment when he assaulted claimant.” Judge Nemoyer awarded damages of $12,459. Gerald P. Gorman of Hamburg, N.Y., appeared for Seifert. Assistant Attorney General Gregory Miller defended the state. OTHER COURT OF CLAIMS DECISIONS In other recent Court of Claims decisions, judges: � Awarded more than $5.8 million to a “very proud, humble and determined” construction worker who was rendered a partial paraplegic when struck by a car while attempting to access a work zone in Syracuse. Iacampo v. State, 86220. � Ordered the state to pay $1.6 million in a Labor Law � 240 case where a bridge painter fell from a scaffold. Obara v. State, 99572. � Found the state 100 percent liable in a matter where a dead tree fell on a pickup truck. In Grega v. State, 101901, the court said the state had constructive notice that the 18-inch diameter elm tree was dangerous, and was unimpressed with the defendant’s method of inspection: driving down the road and attempting to view trees on both sides. � Awarded $109,000 to a correction counselor who was injured when the chair she was sitting on at the Bedford Correctional Facility collapsed. Kwartler v. State, 91739. HIT BY CAR Iacampo v. State stems from an accident in Syracuse. Luca Iacampo was employed on a construction project on State Route 690 on Sept. 24, 1992. While attempting to cross the street to access the work site, Iacampo was struck by a car and severely injured. His injuries included a fractured spleen, fractured vertebrae, open fractures to both legs and a pelvic facture. He is generally confined to a wheelchair and “at a relatively young age, [faces] the prospect of a lifetime of constant pain and restricted activities,” according to Judge Nicholas V. Midey Jr. The claimant’s spouse, Filomena, a “devoted and loving wife and companion” faces the “unenviable prospect of living the balance of her life with a [husband] who can no longer provide her with many of the physical and emotional needs that are inherent in any marriage,” the court said. The $5.8 million award, discounted 15 percent for comparative negligence, includes $3.7 million for past and future pain and suffering for Iacampo, and $500,000 for Iacampo’s loss of consortium. Appearing were Edward C. Schepp of Syracuse for the claimant, and Robert J. Smith of Costello, Cooney & Fearon LLP in Syracuse for the state. LABOR LAW The Labor Law � 240 decision, Obara v. State, involved only an assessment of damages. Strict liability was determined last year under � 240. Mark Obara, 35, was working on a moveable scaffold and ladder while painting a state highway bridge in Albany County the night of Sept. 21, 1998. He fell about 15 feet, and landed on his feet. The resultant injuries make it impossible for Obara to continue working as a laborer, and the bulk of Judge Francis T. Collins’ award — $1.38 million of a $1.66 million award — were for lost wages. Brian W. Raum of Manhattan appeared for Obara. John Dailey of Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander PC in Albany defended the state. In the falling tree matter, Grega v. State, the main issue was whether the state had constructive notice of a hazardous condition on Route 44 in Amenia, N.Y. Grega was driving on that highway on Sept. 17, 1999, when a tree fell on the roof of the Toyota pickup truck he was driving. Judge Stephen J. Mignano of White Plains found the state wholly liable, since the tree was infected with Dutch Elm Disease and would have shown visible signs of decay. Robert C. Lipsky of Spring Valley, N.Y., appeared for Grega. Assistant Attorney General Dewey Lee represented the state. CHAIR COLLAPSE Kwartler arises out of an accident on Feb. 13, 1995, when Jeanne C. Kwartler, a counselor at Bedford Correctional Facility, was injured when her office chair collapsed. Evidence produced at trial showed that Kwartler had long suffered from cancer and, at the time of the accident, was taking a high level of medications that would result in thinning of her bones. Judge Terry Jane Ruderman of White Plains found that while Kwartler had significant medical problems not causally related to the 1995 fall, the accident did exacerbate her condition. She awarded a total of $109,000 in damages. Lee defended the state. Patrick J. Barth of Manhattan represented the claimant.

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