Practice point: The Appellate Division determined that the complaint fails to state a cause of action for conversion, and affirmed dismissal. The employee took property from plaintiffs'
apartment while he was supposed to be installing a cable box in the
neighboring apartment. His conduct was not in furtherance of the defendant's business and within the scope of his employment, but, instead, was based on his
own personal motives.
Student note: Plaintiffs argue that the defendant can be held vicariously liable for its
employee's tortious conduct because the conduct was foreseeable.
However, in determining the threshold legal question, namely, the scope of the defendant's duty to plaintiffs, the Appellate Division determined that the harm to plaintiffs was not within the reasonably foreseeable risks of the defendant's sending its employee to work in the neighboring apartment.
Case: Sterk-Kirch v. Uptown Communications & Elec., Inc., NY Slip Op 00215 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Constructive notice and a defendant's motion for summary judgment in a slip and fall action.
