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New York state is vicariously liable in a case of “road rage run rampant” in which a Department of Transportation worker with a dismal employment record assaulted a motorist, a Court of Claims judge has found. Judge Thomas H. Scuccimarra held for the claimant on theories of respondeat superior and negligent retention of a troublesome employee. He found that the worker, Richard Payne, was acting within the scope of his employment when he ran a woman off the road, made a half-hearted attempt to run her over when she got out of her car and then grabbed her roughly during a subsequent face-to-face confrontation. Scuccimarra also held the state liable for negligent retention as Payne’s conduct on March 8, 1995, was consistent with his “appalling” employment history and essentially predictable. “DOT had more than an inkling that Mr. Payne might pose a problem,” Scuccimarra wrote in West v. State, 93369. However, the court also held the claimant 50 percent liable for “pursuing a confrontation that was easily avoided.” A damages trial will be held later. The case arose out of an escalating series of events more than 10 years ago, when Yolanda West was driving on Route 300 in Orange County with her 2-year-old daughter in the back seat. West testified that after she passed the bright-yellow DOT truck driven by Payne, the state worker pulled alongside of her in a no-passing zone and turned his truck toward her vehicle, forcing her off the road. Livid, West then followed the DOT vehicle through a residential neighborhood and into a shopping plaza, where it stopped. Both drivers got out of their vehicles, shouting at and berating each other. Eventually, Payne got back in his truck and drove away, with West in pursuit. West explained that she was attempting to record identifying information from the truck so she could report the incident. When the truck came to another stop, West got out of her car and walked toward it with pen and paper, writing down the numbers on the truck. Payne accelerated toward the woman, stopping well short of hitting her. He then jumped out of the truck, grabbed West’s wrists and tried to take away the paper and pen, according to trial testimony. Ultimately, the incident was reported to police and Payne was charged with intentional and reckless assault and harassment. He was convicted of a misdemeanor reckless assault count and harassment. At issue in the Court of Claims case was whether the state was liable for Payne’s outburst on either the respondeat superior theory that he was acting within the ambit of his job or the theory that his employment record was so marred with misconduct that the state was negligent in keeping him on the job. Scuccimarra found the state liable on both theories. “What happened here was road rage run rampant, starting with Mrs. West’s imperfect pass on Route 300, followed by a State Employee forcing a member of the public off the highway while he was engaged in the State’s business,” Scuccimarra said. “The events triggered thereafter — including Mr. Payne’s attempts to grab the pen and paper away from Mrs. West, and the physical conduct that followed — flow directly from the initial, more directly predictable, conduct.” EMPLOYMENT HISTORY On the negligent retention claim, Scuccimarra traced Payne’s long and troublesome work history and concluded that after the initial dispute the worker “continued to act as a man with this kind of a track record would behave.” He said it was clearly “only a matter of time” before someone with an employment record as poor as Payne’s would get involved in an incident like the one with West. Court records show that over a 10-year period as a state employee, Payne had driven recklessly, stolen property, abused employee benefits, acted belligerently toward supervisors, disregarded the safety of his co-workers and may have abused drugs or alcohol while on the job. Although Payne had been disciplined repeatedly, demoted and placed on probation, apparently no one knew how to go about getting him fired, the court said. “Mr. Payne’s employment history is appalling,” Scuccimarra wrote. “Although nothing in that history directly shows that he would be likely to assault somebody, by implication, given his evident disregard for others and for the applicability of any rules of conduct to his own behavior, it is foreseeable that Mr. Payne would run someone off the road, have a verbal disagreement, use his truck as an instrument of menace, and recklessly seize the piece of paper and the pen held by Mrs. West, thus yanking at her arm as described.” But the court found that West was just as culpable as the state. Scuccimarra noted that she admitted she was angry and sought to directly confront Payne. The state had argued that Payne was “out of control” and solely responsible for the incident. Michael R. Scolnick of Blauvelt, N.Y., argued for the claimant. Assistant Attorney General Barry Kaufman defended the state.

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