Mandatory Jury Inquiry into “Scope of Employment” for Respondeat-Superior Liability:
A Comprehensive Commentary on Eaton v. Fiotos (2025 NY Slip Op 03553)

Introduction

In Eaton v. Fiotos, the New York Appellate Division (Second Department) confronted the perennial issue of when an employer may be held vicariously liable for its employee’s intentional tort. The plaintiff, Martin Eaton, claimed he was battered by a security guard, Bryan Vetell, at Kellogg’s Diner in Brooklyn. A Kings County jury found the diner defendants liable and awarded Eaton $646,425. On appeal, however, the Second Department reversed the liability verdict, holding that the trial court’s failure to ask the jury whether Vetell was acting “within the scope of his employment” mandated a new trial on liability.

The decision crystallises a practice point that will reverberate through New York tort litigation: whenever liability is predicated on respondeat superior, the verdict sheet must contain an explicit interrogatory asking the jury to decide whether the employee’s tortious act occurred within the scope of employment. Omitting that question is reversible error.

Summary of the Judgment

• Appeals/Cross-Appeal: The plaintiff’s cross-appeal was dismissed as abandoned; the diner defendants’ appeal from the interlocutory order was subsumed in the appeal from the final judgment.
• Liability: Reversed. The court granted a new trial because the verdict sheet failed to ask whether the guard acted within the scope of his employment.
• Damages: The jury’s findings on damages ($275,000 past pain and suffering, $275,000 future pain and suffering, $35,000 future medical expenses) were sustained.
• Disposition: Judgment reversed in part; matter remitted to Supreme Court, Kings County, for a new trial limited to liability; costs awarded to appellants.

Analysis

Precedents Cited

The panel grounded its ruling in a line of New York and federal cases:

• Riviello v. Walden, 47 NY2d 297 (1979) – The Court of Appeals emphasised that scope-of-employment analysis is “ordinarily one for the jury.”
• Norwood v. Simon Property Group, Inc., 200 AD3d 891 (2d Dept 2021) – Reiterated that an employer is not liable if the employee acted for personal motives.
• Llorente v. Wnorowski, 204 AD3d 656 (2d Dept 2022) – Restated the respondeat-superior doctrine in similar factual settings.
• Figueroa-Burgos v. Bieniewicz, 135 AD3d 810 (2d Dept 2016) – Approved setting aside a verdict where a necessary interrogatory was omitted.
• Duran v. Temple Beth Sholom, Inc., 155 AD3d 690 (2d Dept 2017) – Outlined standards for CPLR 4404(a) motions “in the interest of justice.”
• Gray v. Great Am. Recreation Assn., Inc., 970 F2d 1081 (2d Cir 1992) & Pepe v. Maklansky, 67 F Supp 2d 186 (S.D.N.Y. 1999) – Federal analogues reinforcing the necessity of proper special verdict questions.

Legal Reasoning

1. Respondeat Superior as a Two-Pronged Test – The court emphasised that employer liability requires (a) an employment relationship and (b) that the tort occur within the scope of that employment.

2. Omission of Scope Interrogatory = Fundamental Error – Because the verdict sheet asked only (i) whether Vetell was an employee and (ii) whether he committed a battery, the jury could impose liability without the essential “scope” finding. The omission violated the diner defendants’ substantial rights.

3. CPLR 4404(a) and “Interest of Justice” Standard – Under Micallef v. Miehle, judges may set aside verdicts that likely were affected by trial-level errors. Here, the incomplete verdict sheet was a “mistake in the charge,” justifying a new trial.

4. Damages Severability – Because damages were tried separately from liability, and the damages findings were supported by the evidence, they were affirmed. Thus, only liability is retried, conserving judicial resources.

Impact on Future Litigation

• Trial Practice: Counsel must scrutinize verdict sheets in any respondeat-superior claim. A missing “scope of employment” question will almost certainly lead to reversal.
• Judicial Administration: Trial judges must include scope-of-employment interrogatories whenever vicarious liability is submitted to a jury.
• Strategic Considerations: Defendants will routinely request bifurcated interrogatories to separate employment status from scope issues, potentially narrowing liability.
• Precedential Weight: Although an Appellate Division ruling, the clarity of the holding and reliance on Court of Appeals precedent give it persuasive force statewide.

Complex Concepts Simplified

Respondeat Superior

A Latin phrase meaning “let the superior answer.” It holds employers legally responsible for torts committed by employees acting in furtherance of the employer’s business.

Scope of Employment

The range of activities an employee performs that are job-related and intended, at least in part, to advance the employer’s interests.

CPLR 4404(a)

A New York statute allowing trial courts to set aside verdicts or order new trials when the verdict is against the weight of the evidence or “in the interest of justice.”

Special Verdict / Interrogatory

A written set of specific factual questions that the jury must answer, enabling the court to apply the law based on those factual findings.

Article 16 Apportionment

New York’s statutory scheme that can reduce a tortfeasor’s liability by the percentage of fault attributable to non-parties, subject to exceptions (e.g., intentional torts are exempt).

Conclusion

Eaton v. Fiotos delivers a clear procedural directive: When vicarious liability is at stake, juries must be asked—not assumed—to decide whether the employee acted within the scope of employment. The Second Department vacated a significant verdict because that question was absent, underscoring the judiciary’s commitment to safeguarding due process in civil trials. Going forward, litigators and judges alike must incorporate this interrogatory into their trial toolkits, ensuring that liability rests on all the necessary factual foundations.

Beyond its immediate effect on the parties, Eaton reinforces the analytical structure of respondeat-superior claims and promotes meticulous verdict-sheet drafting, thereby enhancing the accuracy and fairness of civil adjudications in New York.