Eva Cummings, left, and Luke Wright, right, stand before an Erie County judge in Buffalo on March 1, 2010. Cummings is serving a 50-year-to-life prison term for the murder of her daughter, Laura Cummings. Wright is serving a 40-year-to-life term. Wright's lawyer, John Nuchereno, is center.
Eva Cummings, left, and Luke Wright, right, stand before an Erie County judge in Buffalo on March 1, 2010. Cummings is serving a 50-year-to-life prison term for the murder of her daughter, Laura Cummings. Wright is serving a 40-year-to-life term. Wright’s lawyer, John Nuchereno, is center. (AP/Don Heupel)

An upstate appellate court has reinstated most of a lawsuit filed against Erie County in connection with the murder of a 23-year-old woman who was tortured and killed at the hands of her mother and half brother.

The Appellate Division, Fourth Department, said Erie County should not have been granted governmental immunity at the pleading stage. The panel stressed that “whether the acts in question were discretionary and thus immune from liability” is a factual issue that the plaintiff is entitled to address.

However, the court also said that a county is not vicariously liable for the acts of a sheriff unless it has enacted a local law accepting responsibility, a finding consistent with jurisprudence from the Second Department but at odds with the Third Department.

Mosey v. County of Erie, 13-00808, stemmed from a bizarre crime in which a mildly retarded and horrifically abused man raped, scalded with boiling water and tortured his disabled half-sister before their mother suffocated the victim, Laura Cummings.

The half-sibling, Luke Wright, who allegedly is brain damaged due to the beatings he endured as a child, is serving a 40-year-to life term. His mother, Eva Cummings, is serving a 50-year-to-life term for second-degree murder. Trial evidence indicated that Wright, who was beaten with a baseball bat and bricks as a child, and his mother kept the victim tied to a kitchen chair with a hood over her head much of the final two months of her life.

Acea Mosey, public administrator of Laura Cummings’ estate, brought an action against Erie County alleging that its child protective service and adult protective service units repeatedly failed to adequately investigate reports of abuse in the home and breached a duty to protect the woman from further abuse.

It also alleges that the county is vicariously liable for the conduct of the sheriff’s department, which allegedly returned Cummings to her home after she ran away, without investigating why she ran away and without reporting the suspected abuse as required under Social Services Law. A separate action alleges the sheriff himself is vicariously liable for the alleged misconduct of his deputy.

Supreme Court Justice Diane Devlin (See Profile) dismissed the complaint in 2012, but was partially reversed by the Fourth Department. The appellate court said Devlin prematurely granted the county immunity, but said she properly dismissed the vicarious liability claims.

“Inasmuch as the county did not assume such responsibility by local law, the court properly dismissed the [vicarious liability claims],” the court said in an unsigned memorandum issued by justices Nancy Smith (See Profile), Erin Peradotto (See Profile), Stephen Lindley (See Profile), Rose Sconiers (See Profile) and Joseph Valentino (See Profile). “It is … well established that ‘a sheriff cannot be held personally liable for the acts or omissions of his deputies while performing criminal justice functions, and that principle precludes vicarious liability for the torts of a deputy.’”

However, the court agreed with the plaintiff that she was not required to file a notice of claim naming the sheriff in his official capacity before bringing the action.

Buffalo attorney John Loss, a partner at Connors & Vilardo who represents the estate, said the Appellate Division departments have issued conflicting opinions on whether counties and sheriffs are vicariously liable for the misconduct of officers. Loss said that under common law, sheriffs were unquestionably liable and were immunized from that liability only through a constitutional amendment that was later repealed in the late 1800s.

“Since then, the Second and Fourth departments have adhered to the concept that counties are vicariously liable for deputies only if they have enacted a local law accepting that responsibility,” Loss said. “The Third Department has said the opposite. Ultimately, the Court of Appeals needs to decide this issue because the Second and the Fourth now disagree with the Third.”

Paul Woodard, an associate at Connors & Vilardo, also represents the estate.

Defending the county are Erie County Attorney Michael Siragusa and Assistant County Attorney Jeremy Toth. Toth said there is a long and well-supported historical basis for the position of the Second and Fourth departments.

“As it stands now, the county is not a properly named defendant when the theory of liability is negligent acts of the sheriff or his deputies, and it has been that way forever,” Toth said. “I don’t see that changing.”