Donald Abate, 46, was found dead in his car during the November 2014 storm after he became stuck in the snow on his drive home to Blasdell from work at the federal detention facility in Batavia. He knew the road had become treacherous and planned to pull off at the Tops in Alden, according to a lawsuit filed by his wife, but he didn’t get that far.
He apparently made it into a parking lot near a car wash on Broadway near Two Rod Road – two miles west of the supermarket – when his Kia would go no farther. Records show Abate made several cellphone calls for help and he was assured by 911 operators that rescuers were on the way and he should stay in his vehicle.
His wife, Jacqueline, and other family members who also were trying to get him help thought the same thing. But afterward, they said that AAA told them that law enforcement had turned their tow trucks back when they were sent to assist the trapped man.
“Donald Abate remained in his vehicle and died … while waiting for help and assistance which never arrived,” the lawsuit states.
Abate, an officer himself, was completely justified in relying on the instructions from the 911 operators who told him not to leave his vehicle, his family is contending, and responders “should have known that failing to act could cause him injury or death.”
Now a State Supreme Court has given Abate’s case more room to find out exactly where the breakdown in communication occurred.
Justice John L. Michalski ordered the State Police to turn over to Abate’s attorneys all communications between State Police and Erie County 911 operators and other county personnel that involved Abate and his situation. The judge also ordered last week that they turn over blotter reports produced by troopers who were on road or search duty in the Alden area during the historic storm.
Michalski previously required Erie County and the Sheriff’s Office, which are named in the suit, to produce the records, 911 calls and transcripts from their handling of Abate’s calls for help. A copy of the 911 log is on file with the lawsuit. Its short notations present a chilling account of Abate’s final hours:
Abate made his first call for help at 3:55 a.m., when he said that he went off the road and was stuck in his vehicle.
Dispatch was notified, according to the log, and the operator notes “He is OK at this time.”
An entry nearly three hours later, at 6:40 a.m., says “Still there.”
Twenty seconds later: “Vehicle is not running correctly at this time.”
Three more hours pass and the log says at 9:40 a.m.: “Phone goes to VM (voicemail).”
Seven minutes later, an entry says State Police are en route.
The next entry is more than four hours later, at 1:57 p.m. “Patrol will check back later.”
The complaint is archived and reopened later, but now the address where Abate supposedly is has changed on the log sheet. It says the vehicle is off the road at 12775 Broadway; the address where he later will be found is 11641 Broadway.
The confusion is reflected in an entry made at 4:50 p.m.: “Male in vehicle in the Whale Wash lot, near Tops … in BLK Kia.”
Abate was not near the Tops market; he was two miles away near the Broadway Car Wash.
At 6:25 p.m., the log says, a patrol is en route.
At 8:16 p.m. the State Police message that it would like a call back from deputies after they check the lot.
And at 11:43 p.m. a deputy is finally on the scene, but at the wrong location, and reports: “Nothing that resembles a Kia. Lot is full of snow.”
The misdirected deputy also checked the Tops parking lot and “from what he can see it is not there … Also talked to Dadswell (the towing service) and they have not towed it.”
Finally, in the early hours of Nov. 19, almost 22 hours after his first call, Abate is found.
At 1:36 a.m.: “Located vehicle, digging to it”
At 1:37 a.m.: “Alden EMS on location”
And at 1:41 a.m., the grim news is recorded: “Call type changed. Dead body.”
In the lawsuit, Jacqueline Abate points out that when her husband started home on Nov. 17, Broadway was open to traffic despite the snow. When the storm worsened, he called his family and said he was going to try to pull over. After he became stuck, he called 911, AAA and family members in an effort to get help. They lost contact with him before noon on Nov. 18.
The final State Police report has a box for incident type. Where it originally said “Unattended death,” the type is crossed out and “accident-fatal” is written in.
Abate’s family believes that Abate would have survived if he had he been attended to.
The report does have the correct location where Abate said he was stuck, but says, “Numerous attempts to locate Abate by troopers and Erie County sheriff deputies were negative. Attempts were made to locate Abate through cellphone pings but an exact location could not be determined.”
When the car finally was found, responders had to break the driver’s side window to get in. The medical examiner later ruled Abate died from carbon monoxide poisoning.
The lawsuit does not specify damages. State Police have until Feb. 19 to comply with the judge’s order.