1/23/2014 2:11:00 PM,
Jeff D. Gorman
(CN) - A man who made a pass at an off-duty cop's girlfriend at a bar and got beaten up for it cannot hold the town liable, a New York appeals court ruled.
Michael Wayne Stevens went to the South Town Pub on Oct. 29, 2008, to enjoy "dollar can night." He had about 12 cans of beer by the time the bar closed the next morning.
The pub's home in New Berlin has a population of just 2,682, smack in the middle of New York between Binghamton and Utica, according to 2010 census records.
Jessica Allen, who was dating New Berlin police officer Richard Kellar, came into the bar around last call, which is when the stories diverge.
Stevens, who claims that he and Allen had a "flirtatious" relationship, conceded to hugging and "hitting on" Allen that night but said the interaction was friendly.
Allen said Stevens blocked her from exiting the pub and put his hand down her pants.
When she returned to Kellar's house, where they had been drinking before running out of beer, Allen told Kellar about the encounter with Stevens. The couple returned to the bar and found Stevens outside, smoking a cigarette.
The two men scuffled. Stevens got the worst of it, suffering a broken wrist and a fractured arm. Kellar faced disciplinary charged and eventually resigned from the police force.
Stevens sued Kellar and the town, claiming the latter was vicariously liable for Kellar's actions.
A Chenango County judge nevertheless dismissed the claims against the town after finding that Kellar had been acting as a "ticked-off boyfriend," not as a police officer.
The Appellate Division's Albany-based Third Judicial Department agreed affirmed.
In addition to having been off duty at the time of the fight, Kellar "was not in uniform, was not carrying his police radio, did not identify himself as a police officer, did not report the alleged assault upon Allen to his dispatcher or another law enforcement agency, did not at any time attempt to take plaintiff into custody, and as acknowledged at oral argument, was not carrying his weapon," Justice John Egan Jr. wrote for the court. "Indeed, upon arriving at the pub, Kellar stated to plaintiff, 'I'm not here as a cop.'"
New Berlin also was not negligent in its hiring of Kellar, despite his assault conviction in the early 1990s, according to the Dec. 19 ruling.
"One of the town's representatives testified that the town was aware of and discussed this incident with Kellar prior to hiring him and that they thereafter did not receive any complaints regarding Kellar's behavior," Egan wrote. "Under these circumstances, Kellar's prior conviction - standing alone - was insufficient to put the town on notice that he was 'inclined to toward conduct such as that which alleged caused ... plaintiff's injuries."