Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Appellate Division of the Supreme Court of New York has reinstated Niagara County in a lawsuit brought by the family of an accident victim whose body tissue was given by a coroner to a local fire chief for use in training cadaver dogs. At the same time, the court upheld the dismissal of a volunteer fire company from the same suit.
The suit was brought by the parents of Richard Dunn, who died in an accident on April 13, 2012. Following the accident, Niagara County 4th District Coroner Russell Jackman II gave some of Dunn’s brain tissue to Fire Chief Vincent Salerno for use in training cadaver dogs. Jackman and Chief Salerno later pled guilty to obstructing governmental administration and resigned from their positions.
Danny and Anita Dunn sued Niagara County, the Cambria Volunteer Fire Company, Jackman and Chief Salerno alleging “negligent infliction of emotional distress.” In 2017, Supreme Court Judge Daniel Furlong dismissed Niagara County and the fire company from the suit, reasoning that neither Jackman nor Chief Salerno were acting within the scope of their respective duties when the exchange of tissue occurred.
The Appellate Division reversed as to the county, reasoning that Jackman may very well have been “acting within the scope of his employment at the time of the alleged tort.” As a result, further proceedings are required to determine whether the county could be held liable for his conduct under the theory of respondeat superior.
On the other hand, the court concluded Chief Salerno was not acting in his capacity as a firefighter and therefore the trial court was justified in dismissing the fire company from the suit. Quoting from the decision:
- The unrefuted evidence showed that Cambria’s employee, Salerno, had only personal motives for requesting decedent’s remains from Jackman, i.e., to further his own interest in training dogs to locate cadavers.
- Salerno had no official duties that required him to train cadaver dogs or obtain human remains to train such dogs.
Here is a copy of the decision:
