In a recent decision that has the civil rights and tort bar abuzz, the New York Court of Appeals has charted new ground on respondeat superior liability. The case is Rivera v. State of New York, the vote 4-3, and the result may be chaos.

The Facts

Jose Rivera was an inmate in a New York State Department of Corrections and Community Supervision (DOCCS) prison. One morning in the mess hall, “correction officer Michael Wehby mocked [Rivera’s] medically-issued protective helmet, which he was required to wear due to a seizure disorder. [Rivera] asked Wehby not to make fun of his helmet, fearing harassment by other inmates, and walked towards the food serving line. Wehby called [Rivera] back to the doorway of the mess hall. When [Rivera] obliged, Wehby grabbed claimant’s jacket, pulled him outside the mess hall and began punching him on the face and head. [Rivera] was forced to his knees while Wehby hit and stomped on him, at which point two other correction officers—Officer Robert Femia and Sergeant Joseph LaTour—pushed [Rivera] down and applied handcuffs. Wehby removed claimant’s helmet and continued the assault, yelling expletives and saying, in substance, ‘I hope you die.’ While immobilized on the floor, [Rivera] was punched, kneed and kicked in the head. At this juncture, Wehby struck [Rivera] in the head with his radio with such force that the battery became dislodged and hit the wall. Eventually, [Rivera] lost consciousness.” Rivera v. State, 2019 WL 6255785, at *1 (N.Y. Nov. 25, 2019).

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