LOCKPORT – Steven M. Cohen, attorney for a Lockport man who fell downstairs after being roused from a drunken sleep by city police, is trying to get a court to reconsider its decision to throw out the quadriplegic’s lawsuit.
Cohen filed papers on behalf of Christopher M. Bower, whose case was dismissed March 21 by the Appellate Division of State Supreme Court, trying to get the court to allow the case to be reargued. Failing that, Cohen said, he will try to get the Court of Appeals to take the case. There is no automatic right of appeal, since the decision that went against Bower was unanimous.
Bower, 44, is living in the Erie County Medical Center’s skilled nursing facility as a result of the incident.
“Christopher was a wage earner, a productive member of society and of the workforce, and an active young man who is now forever relegated to a nursing home, requiring care 24 hours a day,” Cohen, of the Hogan Willig law firm, wrote in his brief to the Appellate Division.
Charles E. Graney of the Webster Szanyi law firm, which handled the case on behalf of the city, said he will file papers opposing Cohen’s effort to reopen the matter.
Bower was injured at about 4:45 a.m. Jan. 14, 2007, when he tripped a burglar alarm in his uncle’s house in Highland Drive, where he was staying, when he came in to sleep off a night of heavy drinking. The alarm company phoned the home and the intoxicated Bower was unable to give them the password, so police were called.
The appellate court called the case a possible burglary, but according to Cohen, some of the four officers who came to the house knew Bower personally and recognized him. But he said they roused the man from his bed and shined flashlights in his face instead of turning on the house lights.
According to Cohen’s brief, Capt. Michael F. Niethe, who wasn’t at the scene, testified in a deposition that he thought the officers should have told Bower to have a good night and then should have left.
But they didn’t. According to Cohen, the four officers roused him from an upstairs bed. One testified that he was afraid Bower might fall but took no steps to stop him from leaving the bedroom and falling down the stairs.
Cohen said, “The conduct of the police officers was disgraceful.”
He also said the police tried to agitate Bower by using a racial slur referring to his African-American boss at work.
Graney said, “None of those facts are true. They didn’t use a racial slur. They didn’t antagonize him.”
“The record on appeal will bear out every fact, whether Ted Graney wants to admit it or not,” Cohen said.
Cohen contended that the Appellate Division ignored the facts of the case in its ruling, despite talking about them at length during oral argument.
Graney said, “There’s no possible way they overlooked Steve’s arguments. Just because they didn’t mention all the facts in their decision doesn’t mean they overlooked them.”
Bower’s original lawsuit asserted that the cops pushed him down the stairs, but Cohen said he won’t make that claim if the case is revived and gets to a jury trial.
“That’s a tough case. A jury isn’t going to believe that, so we’re going with negligence,” Cohen said. He asserted that the appellate ruling flew in the face of precedent regarding a police department’s obligation to take special care of intoxicated people.
He relied on a 1977 case in which two Kingston police officers took two drunks they had picked up to an abandoned golf course outside the city limits and turned them loose. The men wandered onto the Thruway and were hit by a car; one of them was killed.
Graney said, “It doesn’t fly in the face of Court of Appeals precedent because the facts of that case are completely different than ours. Mr. Bower was never taken into custody.”