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Lawyers Find Way Around Governmental Immunity

Apr 9, 2005 | Lawyers Weekly USA In a landmark case, a judge found New York State liable to the tune of $3.6 million for releasing a prisoner who then raped and murdered a 35-year-old mother of three young boys.

The February decision is the first time New York State has been held liable for damages for prematurely releasing a convict, and could be precedent setting nationally, Parker said.

"Very often states have immunity for employees' acts, and that was one of the greatest challenges for us - to get around the state immunity," said Jerold Parker, who represented the victim's estate along with Andy .

Parker said he has received several telephone inquiries from attorneys in other states grappling with similar cases.

"They're in similar situations and they're asking for my briefs," Parker said. "Usually lawyers shy away from this kind of case because of immunity statutes. But in view of this landmark case I think we [may] see a lot more of these cases."

Reckless Mistakes

State governments are usually immune from lawsuits based on the official actions of their workers.

But in this case, Parker and argued that immunity should not apply because the prisoner, Franklin Scruggs, was released because of a series of reckless errors, not by conscious decisions made by officials while performing their governmental duty.

At the time of his release, Scruggs was serving two concurrent 20-year-to-life sentences at the Great Meadow Correctional Facility, one sentence for assault and one for reckless endangerment. After he had served 7 years, he appealed the sentence on the reckless endangerment charge, and an appeals court ordered that he be re-sentenced.

At the time of the re-sentencing, the inmate records coordinator sent a letter reminding the judge that regardless of the sentence on the reckless endangerment charge, Scruggs still needed to finish the 20-year-to-life sentence on the assault charge. Parker said the clerk even asked Scruggs why he was bothering since it wouldn't make a difference in the amount of time he would serve.

The court reduced Scruggs' sentence on the reckless endangerment to 31¼2 to 7 years, which meant he had already served his time for that charge. He should still have had to serve 13 more years, the remainder of the sentence on the assault charge. But a clerk erroneously recorded that both his sentences had been reduced, leaving Scruggs ready for release.

The plaintiff's attorneys said that state employees failed to catch the mistake, despite several layers of oversight - including the records clerk who had written the letter to the judge.

Scruggs was released in November 1997. A year later he met Michelle Brey at a bar and police reports state that the two left together. She was raped and beaten and her body was found on the beach in Rocky Point. And autopsy showed that she died of asphyxiation and had cocaine in her system.

Scruggs is now serving a life sentence for the rape and murder.

The state attorney's general office declined to comment on the case. But Parker said the state's defense raised two defenses, that the state had immunity from the lawsuit, and that it had no special duty to Brey.

Immunity And Duty

Although the government would normally have immunity in a case like this, the plaintiffs' team argued that the circumstances of this case were unusual.

"Normally, states have immunity for governmental functions," said Parker. "For example, if Scruggs had been paroled by the parole board and the board failed to consider a certain piece of evidence, even if they did so improperly, then generally speaking, the officials have immunity.

"What we argued was that there was no normal government function involved in this event. The judge didn't release him. The clerk didn't release him. There was no conscious decision to release this guy, even improperly. No one was using their discretion here, even improperly, which would be covered under the immunity. No, it was just a series of ministerial mistakes, people not double-checking files, no checks and balances. And the mistake went through and he was released. It was just a total screw up, but it did not rise to the level of a government function."

The state's second argument was that it owed no special duty to Brey.

"For instance, you can't sue after you've been assaulted saying there should have been a police officer on every corner to protect that crime from happening," explained Parker. "The police do not have a special duty to that person. But if you call 911 and say someone is breaking down your door, and the police say, 'Stay right there, we're on the way,' and then they never show up, then there is a special duty to that person. They argued that they owed my client no duty and there was no liability.

"But all of those arguments circle around the concept of nonfeasance - a failure to do something, a failure to protect. We argued that's not what this was about, this wasn't about the state failing to do something This was about them affirmatively doing something negligently. It wasn't about nonfeasance. It was about malfeasance. They did a lot of acts negligently."

Finally, the state argued that Brey was partially responsible for her fate because she acted recklessly by going to a bar under the influence of an illegal substance (cocaine) which impaired her judgment, and voluntarily left the bar with a person she knew nothing about.

New York Court of Claims Judge Alan Marin didn't find this third argument at all persuasive. He found that the state was more than two-thirds at fault in the crimes, while the rapist/murderer himself was less than a third liable.

Judge Marin awarded Brey's estate $2,198,653 in past damages, including $850,000 for Brey's pain and suffering; $1.2 million for lost parental guidance to her children and $148,653 for lost earnings. The judge also awarded $1,422,979 in future damages, including $1,200,000 for lost parental guidance and $222,979 for lost earnings.

"If the state didn't let this guy out of jail, this tragedy would never have taken place," said Parker. "If they didn't let him out of jail, Michelle Brey would still be here and she'd be raising her three children. This didn't have to happen."

Plaintiff's Attorneys: Jerrold S. Parker and Andy of Parker & Waichman in Great Neck, N.Y.

Defense Attorney: New York Assistant Attorney Denis J. McElligott for New York Attorney General Eliot Spitzer.

The Case: Steel v. State; Feb. 3, 2005; Supreme Court of the State of New York, Appellate Division; Judge Alan Marin.

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