Donald J. Abate died trapped in his SUV in a snowstorm Nov. 18, 2014, while waiting for help that never came. Now, attorneys for his estate and for his widow, Jacqueline Abate, are suggesting that rather than help being out of reach on that fateful day, it had passed him by.
Contrary to some reports that the road on which Abate’s sport utility vehicle was stuck – Broadway, near Two Rod Road, in Alden – had been closed by snow, attorney Brian P. Fitzgerald said Wednesday, dispatch records show that local fire department personnel and Erie County sheriff’s deputies were responding to other calls in the Alden area at locations near and around Abate’s vehicle – and may even have driven past him while he was still alive.
In a motion heard Wednesday in State Supreme Court, Fitzgerald asked that all the 911 calls made in the Alden and Lancaster areas during that time be made available – not only those made from Abate and his family. That, Fitzgerald said, is the best way to find out why other calls were given priority over Abate’s, and whether Abate’s death could have been prevented.
Outside the court, Fitzgerald showed a copy of a screenshot from the enhanced 911 program that indicates the caller’s location.
“They knew to the inch where he was,” the lawyer said.
The motion heard Wednesday was the latest request in a lawsuit that Jacqueline Abate filed against the county and the Sheriff’s Office for what she believes was a tragic mishandling of her husband’s situation. Her attorneys first obtained dispatch logs from the Sheriff’s Office that pertained directly to Abate and in November received a court order to get copies of the 911 and Enhanced 911 calls that Abate and his family members made while he was in the vehicle.
In January, Justice John L. Michalski also ordered that the State Police produce any records they have related to Donald Abate, including phone calls, blotters or other communications made Nov. 17, 18 or 19, 2014.
The more details they discover, the more questions Abate’s attorneys have about why it took 20 hours for anyone to reach a man stuck in an SUV on a major roadway, and why he was told several times to wait in the vehicle because “help was on the way” when help was not coming.
Donald Abate was driving home to Blasdell from his job as a corrections officer at the federal detention facility in Batavia when the infamous November storm made driving treacherous. He made it as far as the parking lot of a carwash on Broadway, near Two Rod Road, west of the Village of Alden, and called his family and 911.
According to the lawsuit, dispatchers told Abate, his wife and other family members who called that they were sending help; later, according to the suit, AAA representatives said that law enforcement had turned their tow trucks back when they were sent to assist the trapped man. The family states in the lawsuit that emergency responders and law enforcement “should have known that failing to act could cause him injury or death.”
Information obtained earlier indicated that at some point deputies were being sent to the wrong location, two miles east of where Abate finally was found.
Outside the court, Fitzgerald also produced a map showing other locations that deputies and fire department rescuers went to in the hours when Abate was known to still be alive – some of them less than a mile from his vehicle.
It illustrated what he had told the judge:
“We know there were 911 calls and dispatches to areas right around Donald Abate. There was a carbon monoxide call (for a check) right around the corner on Fairview,” Fitzgerald said. “If he was trapped in his vehicle on or near Broadway, he should have been the highest priority.”
There also apparently were calls related to a stranded bus in the area, he said, “which again means there were sheriff’s deputies in the area, moving around, helping others.”
Anthony B. Targia, of the County Attorney’s Office, countered that a “wall of confidentiality” exists around 911 calls, particularly those that are not specific to a case. That would include those callers who were not making reports about Abate.
He also said the fact that responders were answering calls in the vicinity of Abate’s vehicle was not necessarily relevant.
“This was a very strange storm, as you know. There might be 8 feet here and nothing there,” Targia said.
Fitzgerald said outside of court that he is particularly interested in the timing of the other 911 calls, where responders were being directed and who was making those decisions.
The Abate lawsuit does not specify what damages the family is seeking.
Donald Abate was 46 when he died sometime after 11:30 a.m. Nov. 18, 2014, the last time his family heard from him. An autopsy determined the cause of death to be carbon monoxide poisoning.
Michalski said he will review the motion before issuing his decision.