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County can be sued for failing to protect developmentally disabled woman

By: Denise M. Champagne//May 8, 2014

County can be sued for failing to protect developmentally disabled woman

By: Denise M. Champagne//May 8, 2014

The estate of a developmentally disabled North Collins woman, tortured and killed by her half-brother and mother, can proceed with a lawsuit against Erie County and the Erie County Sheriff’s Office for failing to protect her.

The Appellate Division, Fourth Department on Friday reinstated most of the dismissed claims on behalf of Laura Cummings who was 23 on Jan. 21, 2010, when she was scalded and smothered to death by her mother, Eva M. Cummings, after a lifetime of abuse that included being raped by her half-brother, Luke J. Wright.

The higher court found the county is not immune from suit, at least not at this stage with very little discovery completed.

“The family is very grateful that we’ll have a chance to conduct depositions in the case so we can learn what happened,” said John T. Loss, an attorney with the Buffalo law firm Connors & Vilardo LLP.

He represents Acea M. Mosey, Erie County public administrator, who Loss said was selected to represent the estate and uninvolved family members.

“We’ve always said that Adult Protective Services is to protect adults and serve adults and we want to find out what happened to Laura,” Loss said.

Adult Protective Services is a component of the Erie County Department of Social Services.

The county and the sheriff’s department are represented by Jeremy C. Toth, an assistant Erie County attorney who declined to comment, saying it was policy not to comment on pending litigation.

Mosey filed two notices of claim with Erie County after the death of Laura Cummings; one against the county and one against Erie County Sheriff Timothy B. Howard. She is seeking damages for Laura Cummings’ pain and suffering, her wrongful death and punitive damages.

More specifically, she alleges the county, through its child and adult protective services, was:

1) Negligent in repeatedly failing to investigate reports of abuse and protect Laura Cummings;

2) Vicariously liable for negligent omissions of its employees, breaching its duty to protect Laura Cummings amidst reports of abuse, protection Laura Cummings justifiably relied upon;

3) Negligently hired and trained, supervised and retained employees and those of the sheriff’s office, resulting in sexual, physical and emotional abuse and ultimately the death of Laura Cummings from scalding and suffocation;

4) The negligence of a deputy who returned Laura Cummings to her home after she ran away, breaching a mandatory duty to report suspected abuse under Social Services Law; and for  the failure of the sheriff’s office and other employees to adequately investigate reports of abuse, failure to remove Laura Cummings from her home and returning her after she ran away;

5) Negligent hiring, training, supervising and retaining employees and the sheriff’s office; and

6) For wrongful death.

The Appellate Division reinstated the first, second, fifth and sixth causes of action.

The second complaint, specifically against the sheriff, also alleges negligence for returning Laura Cummings to her home after she ran away, failing to investigate reports of suspected abuse; the hiring, training and retention of the deputy and others for returning her home and not removing her from the home; and wrongful death. The third and fourth causes of action in that complaint were reinstated.

Mosey sought certain county records which the county cross-moved to protect, disclosing some after a Supreme Court order. Mosey then sought to talk to various county employees. The first deposition was canceled the day before when the county also notified Mosey it intended to move for dismissal of the claims.

Mosey sought to compel discovery and the county and sheriff moved to dismiss the respective claims which Erie County Supreme Court Justice Diane Y. Devlin granted in her May 21, 2012 order, now modified by the Appellate Division.

The county claimed the complaint against it was subject to dismissal because the claims were “based on discretionary acts … and barred by governmental immunity; the claim with respect to the hiring, training and retaining of employees was not included in the notice of claim; that the county was not liable for the actions of the sheriff; and could not be liable for punitive damages.” The sheriff made similar claims in his motion to dismiss.

The Appellate Division found Mosey’s original notice of claim sufficed to notify the county its “qualifications, knowledge, training, experience, abilities and supervision of its employees with [decedent] were at issue,” but said remaining claims in a third cause of action were properly dismissed for being duplicative of claims in the first cause of action.

It further found Supreme Court aired in dismissing the complaints in their entirety based on defendants’ assertions of governmental immunity.

“Whether the acts in question were discretionary and thus immune from liability ‘is a factual question which cannot be determined at the pleading stage,’” says the unsigned unanimous decision in Mosey v. County of Erie (2014 NY Slip Op 03041).

The higher court also agreed claims holding the county vicariously liable for the actions of the sheriff were properly dismissed. It notes the county did not assume authority for the sheriff by local law.

“[A] county may not be held responsible for the negligent acts of the sheriff and his deputies on the theory of respondeat superior in the absence of a local assuming such responsibility,” the panel wrote, citing Trisvan v. County of Monroe, 26 AD3d 875, leave dismissed.

Loss said the Fourth and Second departments differ with the Third Department which he said has found the provision that had been interpreted to prevent such liability was stuck from the state Constitution in 1989 or 1990 and that a county now is vicariously liable for the actions of a sheriff.

Loss said he may seek leave to appeal to the Court of Appeals on that point but, in the meantime, is proceeding with discovery. He said a court conference is scheduled for June 13 and he is planning to move forward with scheduling depositions.

The Appellate Division also rejected Mosey’s contention that the county should have been sanctioned for not complying with its discovery demand, saying the striking of a pleading is appropriate only when the failure to comply is willful or in bad faith.

With respect to the complaint against the sheriff, the Appellate Division found Mosey did not need to name the sheriff in his official capacity in the notice of claim and that she adequately stated a cause of action against the sheriff for negligent hiring, training, supervision and retention that Supreme Court erred in dismissing.

In addition, the Appellate Division found Supreme Court likewise erred in dismissing the fourth cause of action, for wrongful death, to the extent that it is based upon the claims for alleged negligence in the third cause of action.

Wright, 35, was convicted of first-degree assault, predatory sexual assault, first-degree rape and first-degree criminal sexual act. He was sentenced to 40 years to life in prison and is housed at the Clinton Correctional Facility in Clinton County.

Eva Cummings, 55, was convicted of second-degree murder, first-degree assault and first-degree unlawful imprisonment as a hate crime. She was sentenced to 50 years to life in prison and is housed at the Bedford Hills Correctional Facility in Westchester County.

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