Capak v. Epps

Background

Richard J. Capak sued Tauheed Epps and Rory Dorall Smith under New York law after Smith allegedly struck Capak while Capak attempted to videotape Epps arriving for an appearance at The Tonight Show Starring Jimmy Fallon on October 27, 2017. Capak asserted claims for assault and battery, negligence, negligent hiring and retention against Epps, and punitive damages against both defendants. The case was removed from New York state court based on diversity jurisdiction.

Epps moved for summary judgment on the claims against him. He argued that Smith was an independent contractor rather than Epps’s employee and that Epps therefore could not be held vicariously liable for Smith’s alleged torts. Epps also argued that, even if Smith were considered an employee, the alleged assault was outside the scope of Smith’s employment. Epps further argued that Capak had not supported the negligent-hiring and retention claim and that New York law did not recognize punitive damages as a separate cause of action. Capak did not address those latter arguments in his opposition.

Independent-contractor issue

Under New York law, an employer generally may be held vicariously liable for torts committed by an employee acting within the scope of employment, but generally is not liable for torts committed by an independent contractor. The central question is the employer’s control over the method and means of the worker’s performance, rather than merely control over the result or general supervision.

The court concluded that Smith was not Epps’s employee on October 27, 2017. Smith worked for Epps on a job-by-job basis, could turn down work, did not work daily or on a fixed schedule, could work for others, received a Form 1099 rather than a Form W-2, received no health insurance or other fringe benefits, and appeared to be paid per job. The record also did not show that Epps controlled the specific methods or means Smith used to perform bodyguard work. The court found that general supervision, including setting the beginning or end of a job, was not enough to establish an employment relationship for purposes of tort liability.

The court also rejected Capak’s argument that uncertainty about whether Epps or Street Execs hired Smith prevented summary judgment. The court stated that the relevant question was Smith’s status when the incident occurred, not when he was first hired. It concluded that, regardless of whether Epps, Street Execs, or another entity technically hired Smith, the record showed that Smith worked as an independent contractor when providing security services for Epps.

Scope of employment

The court separately held that Epps would be entitled to summary judgment even if Smith were treated as an employee. Under New York law, an employee’s tort must be committed in furtherance of the employer’s business and within the scope of employment for vicarious liability to apply.

Smith’s duties were to keep Epps safe, make sure Epps reached the taping safely, and keep the perimeter clear. The record showed that Smith had an exemplary history of avoiding physical altercations and had never previously used physical force while providing security services. The court found no evidence that physical or violent contact was part of his job responsibilities. It therefore concluded that the alleged assault was outside the scope of employment as a matter of law.

Other claims against Epps

The court concluded that Capak abandoned the negligent-hiring and retention claim and the punitive-damages claim as asserted against Epps because Capak did not respond to Epps’s arguments concerning those claims. The court therefore granted Epps summary judgment on those claims as well.

Disposition

The court granted Epps’s motion for summary judgment, directed the Clerk of Court to terminate the motion and enter judgment in Epps’s favor, and directed Capak and Smith to submit a joint letter about the status of the remainder of the case, including trial and possible settlement proceedings.