Thania Barbecho
Prof. Williams
RE: Statement of Facts
STATE OF NEW YORK
IN AND FOR KINGS COUNTY
____________________________________________________________________________________
Jane and Edward Rochester
Plaintiff(s),
vs. Index No. 257257
Estate of Mrs. Reed, Celine
Defendant(s)
_____________________________________________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF,
Plaintiffs Jane and Edward Rochester (“Plaintiffs”) respectfully submit a Memorandum of Law to support their position to recover damages for child abuse and neglect, verbal abuse, mental anguish, husband’s lack of consortium and the right to inherit from defendant. In addition, will show why Celine may not implead in this matter.
Statement of Facts
Plaintiff, Jane Eyre, became an orphan at age one. Plaintiff’s uncle Mr. Reed raised her as his own and on his death bed made his wife, Mrs. Reed, (from here on, Defendant) promise him that she would continue to raise and care for Plaintiff. According to Plaintiff, Defendant neglected, verbally and physically abused plaintiff. Defendant’s children took advantage of Plaintiff by calling her “rat and animal”, punishing her, and reminding her that she lived in the charity of Defendant. Plaintiff’s cousins inflicted bodily injuries by throwing objects at her.
According to Plaintiff, Defendant never corrected her children or monitored that they not abuse Plaintiff. Her only response to such malicious events was to find Plaintiff at fault for everything and punish her severely. Defendant struck her and locked Plaintiff for hours in a room where Mr. Reed himself died and it was said to be haunted. Despite Plaintiff’s cries and pleads to be freed from this room, Defendant disregarded them and locked Plaintiff in that room for even longer periods of time causing, Plaintiff to faint due to fear and exhaustion.
Defendant shook, struck, made her feel as if she was less than a servant, banned her from areas of the residence where the rest of Defendant’s children spent time. Plaintiff vowed to tell everyone about the abuse and neglect she received from Defendant where Defendant stated Plaintiff would be seen as a liar.
Defendant’s doctor (who noted abuse and neglect of Plaintiff) suggested that she be sent to school. Defendant told Mr. Brocklehurst (school owner) that Plaintiff had a bad habit of lying and the he not believe what she says, as was all an act. He believed Defendant and assured her that he will warm the staff and children at the school. Plaintiff did not even have the chance to attend school without Defendant already tainting and defaming Plaintiff’s reputation.
Plaintiff’s school, Lowood, was for orphan girls which required Defendant not to pay Plaintiff’s attendance. Due to the nature of the school being under sponsored, the girls were underfed, without many clothes. Defendant never contacted Plaintiff or tried to maintain any sort of relationship with young Plaintiff. This child was abandoned and forced to surpass hardships like witnessing her classmates die of typhoon (same disease her parents died of) which broke out in the school.
Days before Defendant died Defendant gave Plaintiff a letter from Plaintiff’s uncle who had written to Defendant asking to adopt her. However, Defendant admitted to replying back saying that Plaintiff had died from typhoon and never informed Plaintiff out of pure spite and evil wishing that Plaintiff not live the comfortable life she may had if she was adopted by this uncle.
When Defendant wished to see Plaintiff before she died, Plaintiff did not hesitate to travel many miles to go visit her, losing one month of work. There, Plaintiff learned from Defendant’s own statement that she truly despised her from her birth, thought very badly of her merchant father and found Plaintiff to be someone Defendant did not see as family or good enough to associate, let alone live with her children. Nevertheless, Plaintiff stayed to help in any way she could until Defendant died and related matters were handled.
Plaintiff had continuous nightmares similarly to those were she saw ghostly figures after being locked in Defendant’s haunted room for many hours. Plaintiff and husband (Plaintiffs) have cared for young Adele whom has lived the Plaintiffs from Adele’s very young age. They have paid for her education and upbringing and given her a childhood Plaintiff never had. However, Mr. Rochester has not had the opportunity to enjoy his life with Plaintiff due to her mental anguish, and depression presenting itself on a daily basis arising from her abuse and neglect at childhood.
Plaintiff was Abused and Neglected the entire time she resided with Defendant.
Plaintiff’s childhood in the hands of Defendant entailed severe abuse and neglect. Defendant isolated Plaintiff at all times; restricted her from interacting with her own cousins. According to Plaintiff, Defendant allowed her children and Plaintiff’s cousins to abuse Plaintiff. Like when Plaintiff’s cousin threw a book at Plaintiff causing her head injuries.
Defendant admitted at her death bed that she really hated Plaintiff due to her father being a merchant and admitted to regret promising her husband that she would care for Plaintiff. Naturally, Defendant locked Plaintiff in rooms for hours and ignored Plaintiff’s cried for help. Defendant allowed Plaintiff to scream until she fainted during such lock-ins.
Here, we can define Plaintiff as an “abused child” as defined by McKinney’s Family Court Act Sec. 1012 (e)(i) means a child less than eighteen years of age whose parent or other person legally responsible for his care inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates …protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ. Defendant allowed her children to cause Plaintiff physical injuries without correcting her children or ensuring Plaintiff’s safety; as either her children or Defendant continuously abused her.
Plaintiff may also be described as “neglected” under McKinney’s Sec. 1012 (f)(i)(a)(b) stating anyone less than 18 years old, “(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care… (A) in supplying the child with adequate food, clothing, shelter or education in accordance with article sixty-five of the education law, or medical… though financially able to do so or offered financial or other reasonable means to do so; or (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment…”
Plaintiff was injured by her cousins and Defendant did not care to protect Plaintiff or correct her children. Plaintiff was sent to Lowood School only after Plaintiff was extremely sick and needed care from a physician who noticed the abuse and neglect she was receiving. Although, Defendant was financially able to send Plaintiff to better school, she sent Plaintiff to a school for orphan girls where Defendant did not have to pay one cent. Plaintiff was underfed and did not possess the adequate care she could have attained if Defendant cared for Plaintiff’s well-being.
Plaintiff has developed conditions at mature age and Statute of Limitations have cannot be limited.
Plaintiff did not report abuse and neglect to police officials or governmental officials. She recently began to suffer from mental anguish, depression and nightmares of her childhood. Plaintiff tried to continue with her life but could not escape the consequences caused by her traumatic childhood.
In re Johnny S, 896 N.Y.S.2d 824 (Fam. Ct. 2010), child was physically and sexually abused and locked in a dark closet for long periods of time by foster parents. When returned to mother’s custody, child was hyper vigilant and developed Post-Traumatic Stress Disorder (PTSD), saw environment as threatening and had trouble controlling emotions and anger. Plaintiff has developed similar symptoms caused by her traumatic childhood at Defendant’s care.
There are huge similarities between abused and neglect children and sexually abused children. McKinney’s Session Laws of NY Sec. 1864 states “child-victims of sex offenses cannot fully appreciate the crimes committed against them until they reach maturity; many child-victims are victimized by parents or other persons with whom they have a close relationship, and cannot reasonably be expected to report these crimes while they remain under the sway of their abusers”.
In People v. Scalon, 861 N.Y.S.2d, 426 N.Y.A.D. (3 Dp’t 2008), the court used McKinney’s Penal Law Sec. 260.10 and McKinney’s CPL Sec.30.10 (2)(c), upheld that although there is a two year statute of limitations for endangering the welfare of a child, such crimes are considered continuing offenses where statutes of limitations cannot be restricted to two years.
Here, Plaintiff should be allowed to recover damages for the abuse and neglect she sustained as a child under the care of Defendant. The court should create case law for a statute of limitations of an adult who shows signs of mental anguish and stress, depression and such effects of childhood abuse later on in life as the matter at hand is very unique.
Plaintiff was verbally abused.
      Plaintiff was called names by Defendant’s children and by Defendant herself. According to Plaintiff, Plaintiff’s cousins called her “rat” and “less than a servant” accusing her of being a charity child living off the goodness of their mother. Nevertheless, verbal abuse was present at Plaintiff’s entire childhood and while residing with Defendant, and again present at Defendant’s death bed.
The New York Family Court Act Sec. states that verbal abuse without physical force or injuries are sufficient to prove abuse. Accordingly, the court upheld that verbal abuse is sufficient and physical force is not necessary to recover damages. In Matter of Shane T., 453 N.Y.S.2d 590 (Fam. Ct. 1982) the child was called “fag”, “fagot” and “queer” by his natural father as the child was described to have gay-like preferences. He was taunted at home and even at public places, where the child’s natural mother did not intervene or seek to stop such verbal abuse.
The court used the Section 1012 of Family Court Act, which describes a child who is considered neglected or abused. The court used this law to determine that the verbal statements were enough to find abuse even without evidence of physical force or physical inflictions. The court’s interpretation of Section 1012 determined that it did not mention or insist that physical force must be present and although, in this case it was not, the verbal abuse was sufficient to uphold this child as an abused child.
In Plaintiff’s case, she sustained both physical injuries and verbal abuse on the care of the Defendant. According to Plaintiff, she was hit in the head with a book and verbally abused both during childhood and even at Defendant’s death bed many years later. Plaintiff has suffered physical and verbal abuse as defined by the New York Family Court Act Sec.1012 and she is considered an abused child.
Plaintiff’s husband has seeks to recover for lack of consortium.
     Plaintiff’s physical and mental abuse as a child led to her present condition and has not allowed her husband to rightfully enjoy their marriage. Plaintiff’s husband could not have foreseen such outcomes due to his wife’s child abuse and neglect. According to Plaintiffs, she suffers from depression, nightmares, severe mental anguish, and post-traumatic stress which arose from Plaintiff’s childhood abuse at Defendant’s care.
Black’s Legal Dictionary defines loss of consortium as a spouse’s inability to fulfill spousal duties due to the mental anguish and/or personal injuries suffered at the hands of a Defendant. Spouse may enter a claim along with injured or distressed spouse’s claim for personal injuries in order to recover damages.
In Buckley v. National Freight Inc., 681 N.E.2d 1287 (1997) the spouse brought a claim for lack of consortium after injured spouse had settled the case against defendant. Defendant moved for summary judgment against such claim and the court granted Defendant’s summary judgment. The court upheld that it is judicially efficient to join a claim for lack of consortium under a spousal’s initial claim for personal injuries. The court also defined that the right to join such claim rests solely on the spouse who may recover from lack of consortium and Defendants were not required to seek joining of such claims.
In Prat v. Ocean Medical Care P.C., 653 N.Y.S.2d 608 N.Y.A.D (2 Dp’t 1997), court upheld that husband could recover for lack of consortium after wife brought lawsuit against defendant where principal claim was for emotional injuries. The same ruling was upheld in Delosovic v. City of New York, 541 N.Y.S.2d 685 (N.Y. Sup.1989) where Plaintiff (wife) was struck at an intersection, only suffered emotional distress and husband was able to pursue his claim for lack of consortium.
Additionally, the principal reason that claims for lack of consortium have been denied is solely after a claim has been brought by wife, and settled as decided in Buckley v. National Freight Inc.
Here, Plaintiff is bringing claim for the first time, and husband has entered into the record his intention to make such claim together with Plaintiff’s initial claim. Plaintiff is seeking to recover for personal injuries which she sustained as a minor under the care of Defendant who failed to provide Plaintiff with adequate care and abused Plaintiff during such childhood years.
Plaintiff has right to inherit from Defendant’s estate for loss of expectancy.
     Plaintiff has the right to inherit from Defendant’s estate as she was put under Defendant’s guardianship after her natural parents died leaving her as an orphan. Defendant promised to care for Plaintiff after Defendant’s husband and Plaintiff’s uncle died. Defendant assumed all responsibility for the care and well-being of Plaintiff. According to Plaintiff, Defendant confessed to rejecting Plaintiff’s adoption by Plaintiff’s only blood relative.
Section 114 of the N.Y. Domestic Relations Law states that “the foster parents or parents and the minor sustain towards each other the legal relation of parent and child, and have all the rights and are subject to all the duties of such relation, including the right of inheritance from each other”.
In Re Estate of Morrow, 724 N.Y.S.2d (N.Y. Sur. Ct. 2001) and utilizing the N.Y. Domestic Relations Law Section 64, it was defined that although, questions existed as to whether Plaintiff was adopted or not, that “whether children had been lawfully adopted or their status as an adopted child is governed by the law of situs of the adoption, their right to take property by will or inheritance’ from a New York domiciliary is adjutated ‘in the same light as though they have been duly adopted under the laws of New York”.
Plaintiff’s current matter at hand, encounters similar aspects of questionability of whether Plaintiff is considered an adopted child as she became an orphan at age one. Nevertheless, applying the law and case law of Estate of Morrow and the N.Y. Domestic Relations Law Secs. 114 and 64, Plaintiff should be allowed to inherit from Defendant as Defendant agreed to care for Plaintiff after Plaintiff was deemed an orphan. Defendant allowed Plaintiff to reside with her for nearly ten years. Plaintiff stated that Defendant confessed that Plaintiff had one blood relative who wanted to adopt Plaintiff but Defendant lied and told relative that Plaintiff died when Plaintiff was merely away at school. Defendant did not allow Plaintiff to be adopted by such relative but did not provide or support Plaintiff during Plaintiff’s teenage years before reaching her maturity age. Therefore, Plaintiff should be entitled to inherit from Defendant without regards of Plaintiff’s adoption or lack of and be allowed to recover for the many years Plaintiff suffered without financial support from Defendant as Defendant was able to support her but chose not to.
Plaintiffs seek to block impleader by Celine.
     Third-party impleader, Celine, natural mother of minor Adele who is under the care of Plaintiffs seeks to implead in this action. She does not have the right to implead in this action due to the extreme differences between the main issues at hand and the claim made by Celine relating to her daughter seeking to gain custody.
In the matter of Rausch v. Garland, 451 N.Y.S.2d 913 (N.Y.A.D. 1982), the court upheld that third party seeking to implead in this matter was not allowed to enter in this claim. Plaintiff was seeking relieve for defamation by defendants and third-party wanted to enter an impleader which was not allowed as “third party claim must be sufficiently related to the main action to raise the question of whether third-party defendant may be liable to third-party plaintiff”.
Accordingly, Plaintiffs have entered a matter against Defendant for Plaintiff’s childhood of physical and verbal abuse, neglect, Plaintiff’s current depression, mental anguish and distress and her spousal’s lack of consortium. Neither of these claims have the slightest similarity to Celine’s claim for child custody. Plaintiffs seek to block Celine’s impleader as that is a separate matter which must be handled in a different court as jurisdiction here, does not apply.
Conclusion
      For the continuous physical and verbal abuse, neglect, and mental anguish suffered at the hands of Defendant, Plaintiff should be entitled to recover damages using what the common law suggests in similar cases such the above named cases for neglect and sexual abuse. The law does not provide for specific cases like the one in question here by Plaintiff, but the court should enact laws for plaintiffs who begin developing mental and emotional anguish past the reaching of maturity age.
Plaintiffs should be entitled to husband’s lack of consortium due to the common law established seeking that such claim is entered together with spouse’s initial claim and when spouse seeks for personal injuries, all which are present in this claim.
Lastly, Plaintiffs may block third-party impleader due to lack of jurisdiction and lack of similarity between the present claim and third-party’s claim.
For the foregoing reasons, this Court is respectfully urged to grant this memorandum of law for plaintiff’s damages.
Dated: April 16, 2012
                                Respectfully submitted,
Teddy & Associates
257 Meadow Rd Suite 2
Cloudy Ville, NY 11201
Attorney for Plaintiffs
