## Facts

- Donald Riviello was a patron at the Pot Belly Pub in the Bronx, operated by Raybele Tavern, Inc.
- Joseph Waldron was a Raybele employee who worked as short-order cook and also waited tables and relieved the bartender in a small tavern setting.
- Waldron was hired in part because he was a local resident known to patrons; when not performing assigned tasks, he customarily mingled with customers.
- While conversing with Riviello and another patron near the kitchen area, Waldron displayed a pocketknife; after delivering a food order, he returned while manipulating the knife.
- As Riviello turned suddenly, the knife blade accidentally struck his eye, causing loss of use of the eye.
- A jury found Waldron negligent and found Raybele vicariously liable under respondeat superior; judgment was entered for $200,000 (later amended to reflect a $25,000 pretrial payment from Waldron’s insurer in exchange for a release reserving rights against Raybele).
- The Appellate Division modified the judgment on the ground that Waldron’s conduct was outside the scope of employment, effectively eliminating Raybele’s vicarious liability.
- The case reached the New York Court of Appeals on whether Waldron acted within the scope of employment and whether the release of Waldron barred the claim against Raybele under General Obligations Law § 15-108.

## Issues

1. Whether Waldron’s negligent conduct was outside the scope of his employment as a matter of law, precluding respondeat superior liability for Raybele.
2. Whether a pretrial release of the employee-tortfeasor, with an express reservation of rights against the employer, bars a vicarious liability claim against the employer under General Obligations Law § 15-108.

## Decision

- The Court of Appeals held that the evidence permitted the jury to find Waldron acted within the scope of employment; the Appellate Division erred in treating the conduct as outside the scope as a matter of law.
- The Court held that the release of Waldron did not discharge Raybele; it required only an appropriate reduction of the judgment by the settlement amount under GOL § 15-108.
- The court reversed the Appellate Division to the extent it absolved Raybele and remanded for further proceedings consistent with its opinion, including credit for the $25,000 payment.

## Legal Principles

- Scope of employment for respondeat superior turns on whether the employee’s act was a generally foreseeable incident of the employer’s business, even if the precise act or manner of injury was unusual, irregular, or forbidden.
- Minor deviations and “human frailties” do not automatically sever vicarious liability where the risk arises from the employment and the employee’s general duties and setting.
- Whether an act is within the scope of employment is ordinarily a question for the jury; it may be decided as a matter of law only when the deviation is so substantial that no reasonable factfinder could find scope.
- Under GOL § 15-108, a release given to one tortfeasor does not discharge others; the claim against remaining parties is reduced by the greater of the settlement amount or any amount stipulated in the release.
- Releasing an employee does not, by itself, bar a vicarious liability claim against the employer; the employer receives a credit for the settlement payment.

## Conclusion

The New York Court of Appeals held that a tavern could be held vicariously liable where an employee’s negligent injury to a patron arose from conduct a jury could view as an ordinary incident of the employee’s work setting, and that a pretrial release of the employee reduced recoverable damages under GOL § 15-108 but did not eliminate the employer’s respondeat superior liability.


Riviello v. Waldron, 47 N.Y.2d 297, 391 N.E.2d 1278 (N.Y. 1979)