Boland v. State

161 Misc. 2d 1019, 615 N.Y.S.2d 815, 1994 N.Y. Misc. LEXIS 335
CourtNew York Court of Claims
DecidedJuly 13, 1994
DocketClaim No. 79406
StatusPublished
Cited by6 cases

This text of 161 Misc. 2d 1019 (Boland v. State) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boland v. State, 161 Misc. 2d 1019, 615 N.Y.S.2d 815, 1994 N.Y. Misc. LEXIS 335 (N.Y. Super. Ct. 1994).

Opinion

OPINION OF THE COURT

Louis C. Benza, J.

This claim arises from the death of Aaron Boland and the physical and psychological injuries suffered by his sister Jennifer in January 1989; claimant Walter Boland is Aaron and Jennifer’s father. The children were victims of child abuse inflicted by their then stepmother, Penny Lee Boland, with whom they were living while their father, a sergeant in the United States Army, was stationed in Europe. The State’s liability for their injuries is premised on the alleged negligence, carelessness and gross negligence of those operating the New York State Child Abuse Hotline, also known as the Statewide Central Register (SCR) (Social Services Law § 422). Defendant moves for summary judgment dismissing the claim on the grounds that its activities in operating the hotline are protected by sovereign immunity, that claimant Walter Boland has failed to establish that a special duty was owed to his [1021]*1021children or to him, and that operation of the child abuse hotline is a uniquely governmental activity.

FACTUAL BACKGROUND

Claimant Walter Boland, who was divorced from Jennifer and Aaron’s natural mother, married Penny Ammerman in April 1988. Shortly thereafter, he received orders to report to duty in Germany and was informed that it would take at least six months for family housing to become available at his new post. In the interim, Penny Boland and the children moved in with her father, who lived in a trailer park in Canandaigua, New York, which is located in Ontario County. Walter Boland left for Germany in September 1988, at which time Jennifer was 5 Vi years old and Aaron was 2 Vi years old.

In statements provided to the police after the events in question here and in deposition testimony given in connection with this action, Tara Reeve and Linda Siesto, two neighbors in the trailer park, state that after Walter Boland’s departure, they often observed cuts and bruises on the children, particularly Aaron, and that they were not fully satisfied with the explanations given by Penny Boland to account for the marks. At approximately 2:30 p.m. on January 23, 1989 as they were waiting for their children at the school bus stop, Mrs. Reeve was approached by Aaron Boland, who said “[l]oak at my booboo”. Both women observed what they described as a “terrible” bruise on the left side of Aaron’s head, along with other marks. Penny Boland, who was standing nearby, volunteered that Aaron had fallen out of a chair and hit his head.

After returning to her house, Mrs. Reeve and her friend decided that they should do something about their suspicions. Mrs. Siesto initially called the Ontario County Social Services Department, Child Protective Unit (CPU), but was told that any report of suspected child abuse had to be made to the 800 SCR hotline (see, Social Services Law § 422 [13]). The person who answered the SCR hotline said that all operators were busy and asked for a number at which the call could be returned; Mrs. Siesto gave Mrs. Reeve’s phone number and said that “either Linda or Tara could provide the information”. At approximately 5:00 or 5:30 p.m., Mrs. Reeve received the call from SCR and gave a statement about the bruises and the suspicions of abuse, stressing, she says, that something should be done. She was told that the matter would be "looked into” and anticipated, based on knowledge from other sources, that an investigator would be looking into the matter within [1022]*102224 hours.1 Mrs. Reeve saw Aaron again the following day, January 24, at which time he appeared to be okay, but both she and Mrs. Siesto were concerned that apparently no investigator had visited the child’s home in response to their call.

Records at the SCR hotline office indicate that at approximately 5:00 p.m. on January 23, 1989, information about Aaron and Jennifer was taken down by an SCR intake specialist. Her DSS-2221 report lists only the first names of the children and their mother, indicates that a grandfather is also a member of the household, and notes the Bolands’ correct address in Canandaigua. The source of the call is listed as "Anon.”; there is no notation giving Mrs. Reeve’s telephone number and no indication that the informants identified themselves as Linda and Tara. The substance of the call was summarized as follows:

"Aaron is seen at least twice per month w/ facial bruises. [Mother] gives varying excuses. Today Aaron had a couple [of] fading bruises on his forehead, as well as fading bruises around his mouth & cheek appearing to be fingerprints.
"[Mother’s] explanation of these bruises is that [child] was choking & fell out of a chair. Bruises are inconsistent w/ [mother’s] explanation. Source concerned because [child] too frequently has facial bruises of [unknown] origin.
"[Mother] often said that Aaron is bad & he has the devil in him. Source feels Aaron doesn’t misbehave. Aaron appears nervous & withdrawn. Jennifer is also seen w/ bruises but not frequently.”

After receiving the call and deciding that the information could reasonably constitute a report of child abuse, the SCR worker filled out the report form and immediately took steps to convey the information to the CPU in the county where the suspected abuse was occurring (Social Services Law § 422 [2]). Unfortunately, she apparently thought that Canandaigua was located in Oneida County, rather than Ontario County, and either did not refer to the reference guides available to assist workers in verifying locations around the State or misread the information contained therein. The report of suspected abuse was therefore relayed to Joseph A. Cantar ana, a CPU worker in Oneida County. In a tragic coincidence, Mr. Cantar ana was [1023]*1023also unfamiliar with the location of Canandaigua and apparently did not consult any of the maps or other resources that were available to him. The mistake was not discovered until the following morning, January 24, when Mr. Cantar ono’s report was given to his supervisor; he was directed to immediately notify SCR that the report had been sent to the wrong county.

Mr. Cantarano received a busy signal on his first attempts to reach SCR and, at approximately 11:00 a.m., he described his problem to Marita Scott, an SCR worker who had called him on another case. Ms. Scott apparently understood the matter to involve a routine "transfer” (a procedure followed when a family already under investigation moves from one county to another) and therefore directed him to call the "County Line” number at SCR. This number is answered by a recording machine, and Mr. Cantar ano’s message was not transcribed until later in the afternoon of January 24. The matter was treated as a routine transfer, which had to be processed within 24 hours, rather than an incorrect assignment, which would require the immediate attention of a supervisor.

The report of suspected abuse was ultimately transmitted by an SCR County Line unit worker to the Ontario County CPU at approximately 10:10 a.m. on the morning of January 25. Shortly thereafter, a CPU worker went to the address listed in the report, only to learn that both children had been hospitalized earlier that morning. The children were immediately placed in protective custody, but Aaron Boland died from his injuries on January 31. Penny Boland was subsequently found responsible for causing his death, and she is now incarcerated in a State correctional facility.

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Related

Boland v. State
176 Misc. 2d 625 (New York State Court of Claims, 1998)
Onderdonk v. State
170 Misc. 2d 155 (New York State Court of Claims, 1996)
Johnson v. State
166 Misc. 2d 333 (New York State Court of Claims, 1995)
Carcione v. County of Suffolk
163 Misc. 2d 456 (New York Supreme Court, 1994)
Ramesar v. State
162 Misc. 2d 420 (New York State Court of Claims, 1994)

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Bluebook (online)
161 Misc. 2d 1019, 615 N.Y.S.2d 815, 1994 N.Y. Misc. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boland-v-state-nyclaimsct-1994.