Wilson v. Sponable

• Decision Date: 27 May 1981
• Parties: Jerome WILSON, an Incompetent by his Committee, Mary Wilson Hall, and Frances Temoney, as natural mother and person having legal custody of Onda Rochelle Wilson, Respondents-Appellants, v. Robert SPONABLE, Sheriff of Cayuga County, Appellant-Respondent. Jerome WILSON, an Incompetent by his Committee, Mary Wilson Hall, and Frances Temoney, as natural mother and person having legal custody of Onda Rochelle Wilson, Respondents-Appellants, v. COUNTY OF CAYUGA, Thomas Cunningham, Individually and as Employee of Cayuga County, and Frank Thomas, Individually and as Employee of Cayuga County, Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 549

439 N.Y.S.2d 549

81 A.D.2d 1

Jerome WILSON, an Incompetent by his Committee, Mary Wilson

Hall, and Frances Temoney, as natural mother and

person having legal custody of Onda

Rochelle Wilson, Respondents-Appellants, v. Robert SPONABLE, Sheriff of Cayuga County, Appellant-Respondent.

Jerome WILSON, an Incompetent by his Committee, Mary Wilson

Hall, and Frances Temoney, as natural mother and

person having legal custody of Onda

Rochelle Wilson, Respondents-Appellants, v. COUNTY OF CAYUGA, Thomas Cunningham, Individually and as

Employee of Cayuga County, and Frank Thomas,

Individually and as Employee of Cayuga

County, Appellants-Respondents.

Supreme Court, Appellate Division,

Fourth Department.

May 27, 1981.

Bond, Schoeneck & King, Syracuse, for appellants-respondents; S. Paul Battaglia, Syracuse, of counsel

David P. Elkovitch, Auburn, for respondents-appellants.

Before DILLON, P. J., and CARDAMONE, SIMONS, DOERR and MOULE, JJ.

CARDAMONE, Justice:

May a sheriff or a county be held vicariously liable for the acts of sheriff's deputies in the performance of their criminal duties (e. g., guarding prisoners in a county jail, and as distinct from their civil functions) is the question raised in the case before us. We conclude that neither may be held vicariously liable.

BACKGROUND

The litigation arises because plaintiff, Jerome Wilson, a 23-year-old with a history of psychiatric problems, attempted to commit suicide while confined in the Cayuga County Jail in Auburn, New York. He had been arrested on January 21, 1979 in connection with the stabbing death of his girl friend and had been placed temporarily in the Auburn City Jail. Later he was moved to the Cayuga County Jail. Prior to his arrest Wilson had attempted to commit suicide by slashing one wrist and was wearing a gauze bandage on his wrist when put in jail. Before he was transferred to the county jail, the District Attorney of Cayuga County called at home one of the defendants, Sheriff Sponable, to advise him that Wilson should be kept under surveillance because he had tried to hurt himself. The sheriff phoned the jail and gave instructions to put a guard on him. Wilson was placed in a cell on the first floor where he could be constantly watched, but at 2:00 p. m. he was transferred to the fourth floor where six other inmates were confined. At 11:00 a. m. the next morning, Wilson attempted suicide by strangling himself with a piece of gauze tied to the cell bars. The attempt was thwarted when he was discovered by Jailer Thomas Cunningham, who called for help. Another jailer cut the bandage off and rendered resuscitation. As a result of this attempted suicide and the resultant oxygen deprivation, plaintiff was in a coma for 13 weeks. In April 1979 Jerome Wilson's mother, Mary Wilson Hall, was appointed as committee of the person and property of Jerome Wilson. In September 1979 Wilson was adjudged incompetent to stand trial and committed to the custody of the Commissioner of Mental Hygiene, his psychiatrists noting intellectual impairment, slurred speech, loss of memory and unsteady gait. In June 1979 counsel for Jerome Wilson and Frances Temoney, the mother of Wilson's daughter, Onda Rochelle Wilson, caused a summons and complaint to be served on Sheriff Sponable The complaint alleged that the sheriff was negligent in permitting Jerome Wilson to remain unattended, knowing of his suicidal tendencies. Plaintiffs thereafter served a complaint against the County of Cayuga and Jailers Thomas Cunningham and Frank Thomas In the second action the plaintiffs alleged that Thomas and Cunningham breached a duty owed to Wilson by negligently searching him for dangerous articles, i. e., his gauze bandages, and by carelessly failing to make cell checks on him. Plaintiffs also alleged in Action No. 2 that the county was liable to plaintiff for understaffing the county jail, failing to provide special housing for mentally disturbed prisoners; and failing to contract with any hospital for the care of prisoners in need of psychiatric care.

All defendants moved for summary judgment. The motions for summary judgment by Cunningham and Thomas were denied and, on this appeal, that ruling is not contested. Sheriff Sponable and the County of Cayuga appeal from that part of the order denying them summary judgment in part, and plaintiffs cross-appeal.

Sheriff's Liability

Considering first the grounds for liability against the sheriff, it is well-settled that a sheriff is not vicariously liable for the acts of deputies performing criminal duties (Barr v. County of Albany, 50 N.Y.2d 247, 257, 428 N.Y.S.2d 665, 406 N.E.2d 481). Since guarding prisoners accused of crime is a criminal, as opposed to a civil, function (Flaherty v. Milliken, 193 N.Y. 564, 569-570, 86 N.E. 558; D'Amico v. City of Rochester, 79 A.D.2d 1091, 435 N.Y.S.2d 829, the sheriff could not be vicariously liable for the deputies' misfeasance.

The complaint here alleges that Sheriff Sponable himself was negligent because "he, the defendant, permitted Jerome Wilson to remain unattended, unobserved and unguarded ... and failed to provide necessary care and protection for Jerome Wilson, even though the defendant and his agents and employees knew, or should have known of Jerome Wilson's suicidal tendencies."

The Correction Law (§ 500-c) ¹ which imposes on the sheriff the responsibility of keeping prisoners safe, provides in pertinent part: "Each sheriff, except the sheriff of the city of New York and the sheriff of the county of Westchester, shall have custody of the county jails and shall receive and safely keep, in the county jail of his county, every person lawfully committed to his custody for safekeeping, examination or trial, or as a witness, or committed or sentenced to imprisonment therein, or committed for contempt" (emphasis supplied). Moreover, it has been held that a sheriff may be liable if his negligence contributed to a mentally ill prisoner's suicide (see Lavigne v. Allen, 36 A.D.2d 981, 321 N.Y.S.2d 179). The sheriff argues that he cannot be held responsible for plaintiff's safety, because "had delegated supervision and control of the jail to a lawfully appointed deputy." This argument is without merit since the sheriff cannot by delegating authority to his deputies absolve himself of a statutory duty. The sheriff further contends that the issue is not whether the complaint states a cause of action, but whether there are triable issues of fact since the only evidence in the record is that the sheriff did order his deputies to guard Wilson. However, this so-called "evidence" is nothing more than an affidavit and an examination before trial of Sheriff Sponable himself. Whether the sheriff did or did not order supervision of the plaintiff is a question of credibility for the finder of fact, not the court, to resolve (S. J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776), particularly where the movant relies on its own self-serving, exculpatory affidavits (Koen v. Carl Co., 70 A.D.2d 695, 416 N.Y.S.2d 396). Moreover, assuming the truth of the sheriff's assertions, whether the directions for supervision that he gave were reasonable is also a question for a finder of fact (see, Andre v. Pomeroy, 35 N.Y.2d 361, 369-370, 362 N.Y.S.2d 131, 320 N.E.2d 853). "The very question of whether the defendant's conduct amounts to 'negligence' is inherently a question for the fact-trier in all but the most egregious instances" (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3212:8, p. 430). The facts demonstrate that Wilson was left alone long enough to remove his bandages, tie them around his neck and cell, and choke himself for a period of time sufficient to cause permanent injuries. The record contains unresolved questions as to how long Wilson was left alone and whether, in leaving him alone for that amount of time, the jail staff contravened the orders of the sheriff. Thus, "further development of relevant facts" is in order (Zaldin v. Concord Hotel, 48 N.Y.2d 107, 115, 421 N.Y.S.2d 858, 397 N.E.2d 370). A jury could find that the jail staff were properly following the sheriff's orders as given, but that the orders themselves were inadequate and the proximate cause of the plaintiff's injuries (see Lavigne v. Allen, 36 A.D.2d 981, 321 N.Y.S.2d 179, supra).

County's Liability For Its Own Negligence

Turning next to the liability asserted against Cayuga County, the plaintiffs allege that the county is liable to them because of its negligence in: (a) understaffing the jail; (b) failing to provide special housing for prisoners with mental problems; and (c) failing to contract with any hospital or clinic to care for prisoners in need of psychiatric care and/or constant supervision. Special Term granted the county's motion for summary judgment as to the first paragraph, but denied it as to the latter two. The county should have summary judgment on all three claims. ²

The county argues that it is "immune" from liability in connection with the above, since they involve governmental, discretionary decisions. As the plaintiffs point out, section 8 of the Court of Claims Act, makes the state liable for torts to the same extent that private corporations would be. This waiver of immunity was held to apply to the political subdivisions of the state as well in Bernardine v. City of New York (294 N.Y. 361, 365, 62 N.E.2d 604). Some measure of nonliability has been retained. At times, this nonliability may be characterized as "immunity" for governmental acts. The Court of Appeals has made it clear though, that the state's nonliability arises not because of a distinction between governmental and proprietary functions, but because "the law of negligence does not impose liability upon a government or, for that matter, upon an individual unless there is a breach of a duty" (Pratt v. Robinson, 39 N.Y.2d 554, 563, 384 N.Y.S.2d 749, 349 N.E.2d 849; see,...