A jury should decide whether security guards at Memorial Sloan Kettering Cancer Center assumed a legal duty of care on behalf of their employer by placing their boss, who later died, in the backseat of his wife’s car after he passed out at an office Christmas party, a judge has decreed.
After driving John Gillern Jr. to their home in Orange County, Jacqueline Gillern, his wife, left him alone in the car for about 40 minutes to check on her young children, whom she had left with her elderly father. When she returned, she found her husband gray and lifeless.
Ruling on a wrongful death action filed by Jacqueline Gillern, Acting Supreme Court Justice Joan Kenney dismissed all negligence claims based on a general duty to prevent harm to John Gillern caused by his voluntary consumption of beer and tequila.
But Kenney said the specific actions of the three security officers raised the legal question of whether they were acting within the scope of their employment when they lifted Gillern into the backseat of the Honda CRV.
“It cannot be said as a matter of law that employees attending a holiday party sponsored by the department of such employee’s employer, while attempting to help a senior employee in their department, who is apparently in an intoxicated state, are not acting in furtherance of the employer’s business,” Kenney ruled in Gillern v. Mahoney, 805213/2013.
Gillern, 48, was the lieutenant of security at Sloan Kettering and his wife was a nursing supervisor at the cancer center at the time of his death.
Gillern’s survivors adequately made the argument, at the summary judgment stage of the case, that the way the guards placed Gillern’s body into the Honda—on his side, in the backseat—was a “substantial cause” of his asphyxiation, Kenney held.
She noted that the 260-pound Gillern was too heavy for his wife to maneuver by herself with him in an unconscious state. Jacqueline Gillern reported finding his lifeless body wedged between the front bucket seats and the rear seat, his head covered in vomit.
“Factual issues are presented whether the risk was foreseeable that this 260-pound man could, and did, end up essentially in the sole custody of the plaintiff, who was powerless by herself to remove him from the vehicle, a task that took three men, and was also at risk of death from asphyxiation under the circumstances,” Kenney wrote.
The employee-funded party took place from about 5 p.m. to 9 p.m. on Dec. 7, 2012. About 300 people attended the party held on property owned by Rockefeller University and operated by the Rockefeller University Condominium Association.
Sloan Kettering did not sponsor the 2012 party but had done so in the past when it was held on its property, Kenney said. Three Sloan Kettering employees acted as volunteer bartenders.
Gillern passed out near the end of the party and was placed on a rolling luggage rack by the guards and wheeled into a hallway so the remaining partygoers couldn’t see him. His wife was called by a security guard to drive him home.
Kenney said a nurse who happened upon Gillern suggested phoning 911 but “her suggestions were not taken and she did not persist.”
Jacqueline Gillern said the security guards said he had passed out from drinking and needed to “sleep it off.” She said he did not regain consciousness on the roughly 90-minute drive to their home in Washingtonville.
BY Joel Stashenko, New York Law Journal