# Detone v. Bullit Courier Service, Inc.

> Appellate Division of the Supreme Court of the State of New York · May 31, 1988 · 140 A.D.2d 278

URL: https://www.frixlaw.com/law-library/cases/5904643

## Case

- **Full name:** Remo Detone v. Bullit Courier Service, Inc.
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** May 31, 1988
- **Citations:** 140 A.D.2d 278; 528 N.Y.S.2d 575; 1988 N.Y. App. Div. LEXIS 5870
- **Precedential status:** Published
- **Opinion:** Dissent by Asch
- **Judges:** Asch
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5904643

## How later opinions describe it (automated extraction)

- discussing negligent hiring claim where the employee had been fired and rehired

## Opinion text

Asch, J.,
dissents in a memorandum as follows: Plaintiff
Remo Detone suffered severe and permanent brain damage resulting from an assault by a bicycle messenger, defendant Emerson, employed by defendant Bullit Courier Service, Inc. The majority of this court finds the evidence before the jury was legally insufficient to establish a negligent hiring of Emerson by Bullit. I disagree and would affirm the judgment of the Supreme Court.
Initially, of course, we must view the evidence before the jury in the light most favorable to the successful party (Matter *282 of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379 ). Additionally, for this court "to conclude as a matter of law that a jury verdict is not supported by sufficient evidence * * * [i]t is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 ). This test was not met in the case herein.
The messenger Emerson had been fired by defendant Bullit at least three times, two of which occurred before the day of the present assault. Bullit’s records did not accurately reflect this information. Nicholas Rozakis, the vice-president and dispatcher of Bullit, was questioned at length about the repeated firings and rehiring of Emerson. He testified that although he did not know the reason for the firing of Emerson, the reason why Emerson would be rehired was "when he performed his duties as a courier, he performed them on time, and favorably for the company”.
The jury was entitled to infer from this extended testimony that Bullit’s main concern in hiring its employees was their "on time” performance and not other considerations. Since Mr. Rozakis testified bicycles were not to be used by Bullit’s employees, again the jury was entitled to infer, as obviously it did, that Emerson’s use of a bicycle to make his deliveries, and prior pedestrian accidents by him, had been the cause of his firing, since he performed his duties "on time, and favorably for the company”. Strengthening this "inference” for the jury was the testimony by Ted Nicholas, chief executive officer of Bullit, that Emerson was fired once again on August 2, 1983, the date of the assault, for using a bicycle, and that this should have been noted on Emerson’s records but that, in fact, it was not.
Additionally, although the application used by Bullit notes it is a "permanent record”, Bullit never produced Emerson’s original application. This would have shown whether Emerson had listed personal references, as required, and whether Bullit had contacted these references. The failure to produce this document permitted the jury to draw the inference that the information it contained was unfavorable to Bullit (see, PJI 1:77). Significantly, other evidence before the jury indicated that on one of the applications which showed a firing of Emerson, the words "Don’t Xerox” had been attempted to be eradicated, allowihg the strong inference that Bullit was conscious of its negligence in hiring and retaining Emerson. *283 There was no need, as the majority contends, for the plaintiff to show proof of Bullit’s knowledge or negligence in not knowing of a "violent” propensity of Emerson. The correct issue was whether Bullit used reasonable care in hiring and supervising its employees, so as to prevent them from using bicycles whose use could result in clearly foreseeable pedestrian accidents and altercations. The jury decided this issue adversely to the defendant, and the evidence upon which it did so was not only sufficient but went beyond a preponderance of the evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5904643. Public record. Not legal advice.