On April 18, 2007, police responded to a home in Queens, New York. What they found there was a horror. Four bodies were found dead in the home. One was an elderly woman. A second was the companion of the woman. The third was a home health care worker assigned to the woman. The fourth was the twenty year old son of the woman, he had killed himself. Evidence at the scene revealed that he had first killed his mother, then her companion and the home health care worker, and then he had killed himself. The woman was survived by another younger son who had not yet reached the age of consent.
In May of 2008, the surviving son filed a complaint alleging wrongful death in the case of his mother. It also alleged infliction of emotional distress, negligent supervision and gross negligence on behalf of the New York City Police Department. By May 20th the court had denied all of the child’s claims, which were made through his father, on the grounds that the time limit to file such claims had expired. The only remaining claim is that of criminal wrongful death.
The child and his father who petitioned for him submitted documents that they had obtained pursuant to the Freedom of Information Law. They maintain that these documents demonstrated that there was “clear supervisory negligence and negligence-per se-of the Domestic Violence Prevention Act-imputing liability to the (New York City Police Department) and breaching the duty of care to the (mother) and her infant son,(who filed the petition).”
The child and his father maintain that since there was a history of domestic violence between the child’s mother and her older son, which the New York City Police Department, failed to protect the mother and the other persons in the home adequately from the older son. They contend that this failure to protect directly resulted in the murder of the mother and the other persons in the home. The records show that there were nine incidents at the residence of the mother in the year (365 days) preceding her death. Three of these calls were related to domestic violence. In order for the police department to hold any kind of liability as it regards to the fatalities in this case, the person making the claim, in this case the child, must prove that a “special relationship” existed between the deceased mother and the government entity. “The elements of this ‘special relationship’ are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.” (Cuffy v. City of New York, supra).The child’s petition argues that in this case, the “special relationship” either existed or that it should have existed and that the New York Police Department failed to establish that relationship.
Basically, the petition states that the Domestic Violence Prevention Act and the New York Police Department protocols required that officers who are respondents of domestic violence calls are required to establish a relationship with the victims of domestic violence. They maintain that this relationship was not established with the deceased mother and might have prevented her death.
Evidence that was presented in this case showed that in the three domestic violence incidents that were reported to police in the year preceding the victim’s death, demonstrated that the victim had described the incidents as verbal disputes only. There was only one incident, the last one that escalated into a physical confrontation and that was relatively minor in that the older son was accused of taking the mother’s phone away from her. None of the incidents occurred in the presence of a police officer and were only related to the officers upon their arrival. Two days before the deaths, the incident was reported by the statement of the deceased that stated, “I have a verbal dispute with my son which escalated to him restelling me for my phone. He threatened that if I call the police I will see what will happen.” (Sic.) There was no protection order in affect and no “stay away order” in fact; there was no court orders of any kind. The first time that the court looked at this case, the motions was denied. The child and his father appealed the decision and argued that they obtained “new” evidence that supported their first contention. The city disagreed. They felt that the police reports that the claimants are referring to were in existence at the time that the first petition was filed and does not constitute “new” evidence at all. They stated that regardless of the age of the child, the father of the child was the one presenting the petition for the child and there was no reason for him to have not obtained this information from the records in time to submit them to the court the first time.
The court ordered that because the child is young, and the child had to rely on his father to file for him, and they are not allowed access to certain necessary documents without court action, that the child’s request to renew the application for an order from the court for a late notice of claim is granted. He will be allowed access to all documents necessary to find facts to support or disport his claim.
In many cases, it is difficult for a person to understand that incidents that occur within hearing of a child constitute neglect. A parent who threatens to kill the other parent is in effect neglecting the mental wellbeing of the child. Any act of outright domestic violence, hitting, slapping, pinching, verbal abuse, all constitute a criminal act. If they are done in front of a child then it constitutes neglect.