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PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE.

The Court of Appeals, in a full-fledged opinion by Judge Stein, concerning a lawsuit alleging the Erie County Sheriff was negligent in failing to protect plaintiff from sexual assault while in jail, determined: (1) plaintiff did not need to file a notice of claim because the county can not, under the NYS Constitution, indemnify and defend the sheriff in connection with the action; (2) the complaint stated a cause of action in negligence (failure to keep an inmate safe); and (3) governmental immunity is an affirmative defense on which the sheriff bears the burden of proof which cannot be addressed at the pleading stage. The fact that the county provided law enforcement liability insurance for the sheriff did not trigger the notice of claim requirement under the Municipal Law:

… [T]hat the County agreed to provide “Liability Insurance” for the Sheriff in exchange for consideration because “policies of law enforcement liability insurance paid for by the County” had become prohibitively expensive. In resolving to act as an insurer, the County recognized — as was commonly understood at the time — that it could not statutorily obligate itself to defend and indemnify the Sheriff, as it had agreed to do for the Sheriff’s employees, under the New York State Constitution … . Absent the existence of any statutory obligation on the County to indemnify the Sheriff — as opposed to an agreement to act as his insurer — the Appellate Division correctly ruled that service of a notice of claim was not required under General Municipal Law § 50-e. …

While the State is by no means an insurer of inmate safety or required to provide unremitting surveillance in all circumstances … , we explained in Sanchez [99 NY2d 247] that, “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” … . Inasmuch as “the Sheriff is [similarly] prescribed, by law, to safely keep inmates of the County Jail” … , the rule set forth in Sanchez applies equally here. Villar v Howard, 2016 NY Slip Op 06944, CtApp 10-25-16

 

MUNICIPAL LAW (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NEGLIGENCE (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NOTICE OF CLAIM (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/SHERIFF (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)

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