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Wednesday, October 01, 2014
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Wrongful death County going to trial

Tuesday, May 20, 2014 - Updated: 10:19 AM

By NICOLE ANTONUCCI

nicole.antonucci@recordernews.com

FONDA -- Officials from Montgomery County will be going to trial this summer in the wrongful death lawsuit of Luis A. Torres Jr., an inmate who died in 2010 after he fell from a moving van as he was being transported by the sheriff's department to the county jail.

A federal judge last week denied a motion for a summary judgment, so the case will go to trial July 21.

The judge ruled Friday there are facts in dispute in the case, including whether a corrections officer should have provided Torres with a seat belt, whether the van driver was speeding, and whether Sheriff Michael Amato, former undersheriff Jeffery Smith, jail administrator Michael Franco should be held responsible for the practices leading to the incident.

"The plaintiff has presented sufficient evidence to create issues of fact precluding summary judgment," Judge Mae D'Agostino wrote.

A civil rights lawsuit was filed in U.S. District Court in 2011 seeking monetary damages against the county. It named Amato, Smith, Franco and corrections officers Terry A. Carter and Paul A. Daw.

Smith declined to comment as advised by attorney Murry Brower. Calls to Brower were not returned. Sheriff Michael Amato could not be reached for comment.

According to the suit, on the morning of Oct. 13, 2010, Torres was transported by Carter and Daw in a van to the city of Amsterdam for a court appearance.

After the court appearance, Torres and a few other inmates returned to the van, where Torres was allegedly not placed in a seat belt.

As the van, driven by Carter, approached the jail, Carter made a left turn, at which point Torres exited the vehicle, sustaining fatal injuries to his head. He died shortly thereafter.

"The allegation is, and is supported by testimony in the van, that Carter took the van at too fast a speed. Torres was not seat belted, so when he took the van at too fast a speed, he hit the doors which were not secured, flew out, and died," said Elmer Robert Keach III, the attorney representing Torres' estate.

The sheriff's department has previously alleged that Torres jumped out of the van, but Keach says there was no fingerprint testing, nor did officials preserve the door for further testing.

"You have guys standing around there with 100 years of law enforcement experience between them and nobody bothers to run those tests?" Keach said. "Who can trust an investigation done by the Montgomery County Sheriff's Department when their conduct is in question?"

The county's attorneys attempted to avoid a trial, and requested that the judge issue a ruling in a summary judgment. The lawyers argued that failure to restrain inmates with a seat belt does not violate civil rights under due process in the fourteenth amendment.

The judge determined that there is sufficient evidence against this. The county's attorneys said that the inmate could have put the seat belt on himself, but testimony from another inmate said the handcuff and ankle shackles prevented it.

The judge determined that testimony indicated Carter was speeding, and testimony also verified that the van door was not properly locked.

The county's attorneys argued that the suit failed to establish liability against the county and its policy makers, and neither Amato, Smith and Franco were personally involved.

However, the judge determined there is evidence to show they were aware that the locks on the van weren't working, due to an oversight during the initial inspection by the receiving officer.

In addition, while there are policies in place to secure inmates with a seat belt during transport, testimony by witnesses alleges that the policy was not routinely followed.

Finally, the county's attorneys argued they were entitled to immunity because "the proof in this case, and considered in light of the law as it stood in 2010 when this accident happened, was not sufficiently clear."

However, the judge determined the county had fair warning that failing to seat belt an inmate, combined with driving recklessly would be indifference to a substantial risk of harm.

"It was clearly established that prison employees could not subject an inmate to a substantial risk of serious harm," the judgment states. "Court finds that the defendants are not entitled to qualified immunity at this stage ... therefore, defendants' motion for summary judgment is denied."

     

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