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October 11, 2017

Liability for the acts or omissions of a deputy sheriff


Liability for the acts or omissions of a deputy sheriff
Jones v Seneca County et al, 2017 NY Slip Op 07084, Appellate Division, Fourth Department

Jacqueline M. Jones commenced an action seeking to recover damages for injuries she allegedly sustained as a result of an encounter with Deputy Frank Eldredge, a Sheriff's deputy employed by Seneca County. Supreme Court granted Seneca County's motion for summary judgment dismissing the complaint.

The Appellate Division affirmed the Supreme Court's decision noting its prior decisions holding that "[a] county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior,* in the absence of a local law assuming such responsibility."

Referring to the 1989 amendment to New York Constitution of Article XIII, §13(a), the so-called Flaherty Amendment,** the Appellate Division said that although the amendment "allows a county to accept responsibility for the negligent acts of the Sheriff[, it does not impose liability upon the county for the acts of the Sheriff or his [or her] deputies on a theory of respondeat superior." Further, said the court, Seneca County had established that it did not assume such responsibility by local law.

Jones also argued that Seneca County had "nevertheless assumed responsibility for the acts of its Sheriff's deputies when it entered into a collective bargaining agreement [CBA] with the Seneca County Sheriff's Police Benevolent Association." 

The Appellate Division rejected Jones' contention that the CBA provides for indemnification of employees from judgments and settlements of claims arising from actions taken within the scope of such employees' public employment and duties and opined "a CBA is not a local law*** and, in any event, the language of the CBA here does not expressly provide that defendant will assume responsibility for the tortious acts of its Sheriff's deputies."

* The Doctrine of Respondeat Superior provides that an employer or principal is legally responsible for the wrongful acts or omissions of an employee or an agent.

** Article XIII, §13(a) as amended, is sometimes referred to as the "Flaherty Amendment." The term "Flaherty deputies" was applied to certain employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of his or her civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). "Flaherty deputy sheriffs" -- civil deputies, as distinguished from "criminal deputy sheriffs" -- had been then exempted from the civil service merit system mandates on the authority of Flaherty v Milliken. Article XIII, §13(a) of the State Constitution, as amended in 1989, deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment then allowed a county to assume liability for the acts of a sheriff's civil deputies, the State Department of Civil Service reasoned that where a county had assumed such liability the rationale for the exemption of "Flaherty deputies" from the merit and fitness requirements for such public employment was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of such civil deputies, i.e., civil deputies of a sheriff where the county has assumed liability for the acts or omissions of a sheriff's civil deputies in the performance of his or her duties. See, also, Hondzinski v. County of Erie, 57 NY2d 715, a decision addressing the "determining the seniority of a "Flaherty deputy sheriff" who had been grandfathered into the competitive class" in the event of a layoff.

*** Subdivision 2 of Public Officers Law §18, "Defense and indemnification of officers and employees of public entities," provides, in pertinent part, for an entity "whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions."

The Jones decision is posted on the Internet at:


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