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JONGLINE FOSTER v. STATE NEW YORK (07/16/68)
COURT OF CLAIMS OF NEW YORK
1968.NY.42657 <http://www.versuslaw.com>; 292 N.Y.S.2d 269; 57 Misc. 2d 281
July 16, 1968
JONGLINE FOSTER, AS GUARDIAN AD LITEM OF ELIZABETH COBB, AN INFANT, ET AL., CLAIMANTS,v.STATE OF NEW YORK, DEFENDANT
John J. Glavin, Jr., for claimants.
Louis J. Lefkowitz, Attorney-General (Mordecai Bressler and John D. Meader of counsel), for defendant.
James H. Glavin Jr., J.
This is a claim for damages arising out of an assault upon Elizabeth Cobb, an infant over the age of 14 years, on the premises of and by an employee of the State of New York.
The guardian for the infant claimant herein appears to have been duly appointed and to be duly serving. The claim was properly, timely and duly filed. It has not been transferred or assigned, nor has it been submitted to any other court or tribunal for audit and determination.
The claim of the infant's maternal aunt, Jongline Foster, individually, for medical expenses was previously dismissed as not timely filed.
Elizabeth Cobb, an infant of approximately 15 years of age, was sent by the Family Court of Albany County to the New York State Training School for Girls at Hudson, New York, in January, 1964.
Miss Cobb was alone in Cottage 2, her assigned living quarters, at about 3:00 p.m. on a day in September, 1964. She was preparing for her daily bath in accord with school regulations, when Mr. Vernon Douglas entered her room in the cottage and forcibly raped the infant claimant who attempted unsuccessfully to resist. Mr. Douglas threatened to kill the infant claimant if she told anyone. Douglas was a supervisory employee at the New York Training School and direct superior of the Cottage 2 housemother. The housemother, Mrs. Helen Irving, returned to Cottage 2 afterwards and found Vernon Douglas and Elizabeth Cobb there.
After Elizabeth Cobb told Vernon Douglas that she missed her menstrual period, Douglas arranged for the infant claimant to go home for a trial visit in the middle of October, 1964. The school menstrual record chart showed entries from the 10th through the 15th of October, 1964 and that she had been issued sanitary items although she was home on a trial visit with the claimant guardian, Jongline Foster, at the time. Mr. Douglas had access to the school menstrual record charts. The infant claimant testified that she had no menstrual periods from early September, 1964 until after January, 1965. She returned to the training school after her week trial visit but was not given a physical examination.
In November, 1964, Vernon Douglas arranged for Elizabeth Cobb to be paroled from school to return and live with the claimant guardian, Jongline Foster.
Mr. Douglas visited Miss Cobb several times at her home and toward the end of December, 1964, gave her pills to take and directions how to take them.
Late on January 6, 1965, at home, Elizabeth Cobb suffered a miscarriage of the child she was carrying and passed the fetus. She was admitted to the emergency room of Albany Medical Center the next day where her condition was diagnosed as having become pregnant in September, 1964 and having suffered a miscarriage. She sustained an operation to repair her uterus as a result of the miscarriage.
The services of Vernon Douglas at the New York State Training School for Girls were terminated in April, 1965.
Upon the facts in this case and applicable legal principles it is apparent that the infant claimant is entitled to an award. How much that award should be is, as usual and always, a perplexing question.
The supervision and care of the young girls at the New York State Training School left much to be desired. For example, Mrs. Helen Irving was employed by the State of New York as a housemother for Cottage 2, the assigned residence of the infant claimant. Yet, she was not present there during the occurrence in question. Miss Cobb was left alone and unsupervised, except for the presence of Vernon Douglas, the housemother's immediate superior and supervisor.
Likewise, supervision of the school records was hardly adequate. For example, the entries appearing on the infant claimant's menstrual chart indicating she received and used sanitary items in October, 1964 when she was not even at the school, are highly incredible. This is especially so ...