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State Found Liable for Mistaken Release of Rapist

Jan 31, 2003 | New York Law Journal A Court of Claims judge has held the state of New York liable on summary judgment for two rapes and a murder that occurred after the mistaken release of a convicted felon a year before the attacks.
Court of Claims Judge Alan C. Marin ruled that the state's negligence was the proximate cause in Franklin Scruggs' actions- the rapes of two Long Island women and the murder of one of those victims in 1998.

Having determined in February that governmental immunity did not apply to the "ministerial" mistake made by the Suffolk County Court clerk's office, Judge Marin found that Mr. Scruggs' actions were foreseeable and that the clerical error led to his contact with the victims.

However, the decision also called for a hearing to determine the applicability of a law exempting the state from joint and several liability for non-economic damages, should it be determined that the state was less than 50 percent responsible for the acts.

The Jan. 27 decision in Steel v. State of New York, 100531, stems from a $40 million wrongful death suit filed by Linda Steel, the mother of victim Michelle Brey, herself a mother of three young children at the time of her murder.

Ms. Brey was killed in October 1999 after she was seen leaving a bar in Suffolk County with Mr. Scruggs. Two days later, her partially clothed body was found on Rocky Point Beach. Police said she had been strangled and beaten to death and that her body showed signs of sexual assault.

The case brought by Ms. Brey's mother was joined with a second lawsuit filed by another woman, whom Mr. Scruggs raped two weeks before the attack on Ms. Brey. That woman contacted police when she heard media reports of Ms. Brey's death and helped them find Mr. Scruggs.

The attacks occurred after a clerical error in Suffolk County Court incorrectly indicated that Mr. Scruggs had completed his sentence for an attack on a 21-year-old woman whose car he forced off a Suffolk road before beating her.

Prison officials released him in November 1997 without realizing that he had 13 years left on his term. Police previously had arrested him three times for rape. Mr. Scruggs pleaded guilty in May 1999 to murdering Ms. Brey and was sentenced to 20 years to life.

A decision by Judge Marin last year determined that since the clerical acts were not discretionary, but instead were ministerial acts not requiring decision-making, governmental immunity did not apply. His latest ruling determined that the "ministerial wrong" proximately led to the attacks.

The attorney for Ms. Steel, Jerrold S. Parker, said his research showed no case authority addressing liability issues in situations where a government entity mistakenly releases a prisoner who then commits a subsequent crime. Mr. Parker, who practices with Parker & Waichman in Great Neck, said that most cases he researched dealt with inmates who had escaped and committed crimes.

Assistant Attorney General Denis McElligott, who presented oral arguments for the state, was unavailable for comment on the decision yesterday. Reaching his determination in the 12-page decision, Judge Marin first focused on to whom the state owed a duty. He noted that in a 2000 Court of Appeals case, Lauer v. City of New York, 95 NY2d 95, Chief Judge Judith S. Kaye wrote that the "[f]ixing of the orbit of duty has likely divided this Court more than any other issue."

In Lauer, the Court declined to find that the city owed a duty to a man seeking emotional distress damages who wrongly was the focus of a homicide investigation into his son's death based on an erroneous report from the medical examiner. The Court wrote that it was unwilling to impose a duty on the Office of Chief Medical Examiner that would run to the public at large.

Closer to the case before him, Judge Marin found, was Haddock v. City of New York, 75 NY2d 478, a 1990 Court of Appeals decision based on the rape of a 9-year-old girl at a Bronx playground by a New York City Parks Department employee. The Court there found that if the city had followed its own guidelines for screening work relief employees, it would have received immunity from the acts of James Johnson.

Referring to his case and the Haddock decision, Judge Marin wrote that "the similarities between the two cases become evident."

"[I]n each, the defendant's negligence had the effect of putting an individual in a place he should not have been because of his history of violence, and which enabled him to come in contact with the victims," the decision stated. "Scruggs would not have been out at all; Johnson would not have been working at a playground setting where he had greater access to children ... "

Judge Marin's analysis also focused on the foreseeability of Mr. Scruggs' acts. On that point, he looked to a 1955 Court of Appeals case, Williams v. State of New York, 308 NY 548. The Williams case involved a man who died of a brain hemorrhage after being frightened when an escaped prisoner commandeered his truck. The inmate was serving time for an attempted robbery, which occurred with an accomplice armed with a toy pistol. The Court found that his conduct in the car-jacking was not foreseeable based upon his record.

Using Williams, attorneys for the state argued that Mr. Scruggs previously had not committed an A felony. But Judge Marin found that argument to be "an undue narrowing of foreseeability," considering that Mr. Scruggs was deemed a predator by the state.

As such, he granted the plaintiffs' summary judgment. However, he denied their motion to amend the complaint to include pleadings that would argue an exception to state law limiting joint and several liability for non-economic damages against defendants whose liability is less than 50 percent.

Judge Marin found that although the motion to amend was timely, the plaintiffs did not satisfy the requirements for the specific exceptions under Article 16 of the Civil Practice Law and Rules. Mr. Parker said that the exceptions under Article 16 would pertain to damages for pain and suffering.

The judge therefore called for further proceedings to determine the apportionment of responsibility among the defendants.

June 16, 2003

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