RELYING ON RESPONDEAT SUPERIOR THEORY, FOURTH DEPARTMENT HOLDS COMPLAINT STATES A CAUSE OF ACTION FOR DEFAMATION AGAINST EMPLOYER BASED ON EMPLOYEE’S FACEBOOK POSTS

• Posted on: Oct 9 2020

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment.”  Horvath v. L&B Gardens, Inc., 89 A.D.3d 803 (2^nd Dep’t 2011) (citations omitted).  “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his act may be reasonably said to be necessary or incidental to such employment.”  Holmes v. Gary Goldberg & Co., Inc., 40 A.D.3d 1033, 1034 (2^nd Dep’t 2007) (citations and internal quotation marks omitted).  “While … vicarious liability does not arise from acts that are committed for the employee’s personal motives unrelated to the furtherance of the employer’s business, those acts which the employer could reasonably have foreseen are within the scope of the employment and thus give rise to liability under the doctrine of respondeat superior, even where those acts constitute an intentional tort or a crime.”  Id (citations omitted).  Liability may occur “when the “employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment.”  Judith M. v. Sisters of Hope Charity Hosp., 93 N.Y.2d 932, 933 (1999) (citations omitted).  Where an “employee for purposes of his own departs from the line of his duty so that for the time being his acts constitute an abandonment of his service, the master is not liable.”  Judith M., 93 N.Y.2d at 933 (citations and internal quotation marks omitted).

While the doctrine of respondeat superior was originally applied narrowly, the scope of its application has expanded due to “social policy” because, inter alia, “the escalation of employee-produced injury, concern that the average innocent victim, when relegated to the pursuit of his claim against the employee, most often will face a defendant too impecunious to meet the claim, and that modern economic devices, such as cost accounting and insurance coverage, permit most employers to spread the impact of such costs.”  Riviello v. Waldron, 47 N.Y.2d 297 (1979) (citations omitted).  

An analysis of the particular facts and circumstances of a case are important to the application of the respondeat superior doctrine because “while clearly intended to cover an act undertaken at the explicit direction of the employer, hardly a debatable proposition, it also encompasses the far more elastic idea of liability for any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act.  Riviello, 47 N.Y.2d at 303 (citation and internal quotation marks omitted).

On October 2, 2020, the Appellate Division, Fourth Department, decided Votsis v. ADP, LLC.  The facts, which the Court accepted as true for the purpose of deciding the motion to dismiss pursuant to CPLR 3211(a)(7), set forth herein were alleged in the complaint and summarized by the Court.  The corporate defendant in Votsis was ADP, LLC, the payroll service company.  ADP’s district manager (“Employee”) solicited plaintiffs, restaurant and its owner, to purchase ADP’s payroll services.  Plaintiff provided Employee with business and financial records to enable ADP to prepare a price quote.  For reasons not fully explained in the Votsis decision, a few days after Employee solicited plaintiff restaurant’s business, he posted the following on the restaurant’s Facebook page (which quote was taken from the amended complaint as found in the record on appeal (available on the e-courts website)):

Stay away from this place. There are possible multiple health code violations and department of labor violations, possible money laundering and fraud – They use old and expired ingredients and treat their employees like animals and don’t pay them for the hours they work. 

An Employee is about to be evicted from their home because of the lack of wages paid. Multiple complaints have been filed with the DOL and Department of Health. Elizabeth Votsis is the owner and has been previously charged with fraud. 

Do not support this business and force them out of the East Rochester community. All of the few “positive” reviews on Google, FB and Yelp are fake and created by the owners. The negative reviews are on point with the failure of this establishment.” [(the “Statements”)]

Plaintiff sued Employee and ADP for damages resulting from the Statements.  Four causes of action were asserted against ADP:  defamation (under the theory of respondeat superior); intentional infliction of emotional distress; breach of fiduciary duty; and, negligent supervision, hiring, retention and training.  Supreme court dismissed all causes of action that were asserted against ADP.  Plaintiff appealed.  

The Fourth Department modified supreme court’s order by reinstating the defamation cause of action against ADP on a respondeat superior theory.  In finding that plaintiff’s complaint adequately plead a defamation cause of action against ADP, the Fourth Department stated:

… plaintiffs’ amended complaint explicitly alleged that “Polit was acting within the scope of his employment as a district manager employed by … ADP when he published the defamatory statements against plaintiffs.” Assuming, arguendo, that this assertion alone is too conclusory to state a cause of action against ADP premised on respondeat superior liability, we conclude that plaintiffs sufficiently pleaded the existence of respondeat superior liability through other allegations, including, among other things, that Polit visited Crave for the sole purpose of soliciting plaintiffs to enter into a payroll service agreement with ADP, that Polit represented himself as ADP’s district manager and requested Crave’s business and payroll records in order to provide Crave with a quote for ADP’s services, that the post was based on Polit’s review of those records, that ADP encouraged Polit to use social media in connection with his sales work, that Polit published the post during regular business hours, and that ADP was aware of Polit’s use of Facebook and authorized his conduct. Furthermore, we conclude that, with respect to ADP, plaintiffs sufficiently alleged the other necessary elements of their first cause of action (see generally Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379 [1977], rearg denied 42 NY2d 1015 [1977], cert denied 434 US 969 [1977]; D’Amico v Correctional Med. Care, Inc., 120 AD3d 956, 962 [4th Dept 2014]; Zetes v Stephens, 108 AD3d 1014, 1018-1019 [4th Dept 2013]). 

Votsis (some citations and internal quotation marks and brackets).

TAKEAWAY

Employers should be mindful of potential responsibility for the acts of their employees under the theory of respondeat superior.  Employees should be careful about what they post to social media and how such posts may impact their employers and their jobs.