RALEIGH -- The N.C. Court of Appeals has ruled that a Jonesville woman, who has accused the town of Jonesville and its police department of negligence in the death of her daughter in November 2002, is entitled to a new trial.
The appeals court made the unanimous ruling earlier this month, reversing a May 2007 ruling made in Yadkin County Superior Court. The appeals court ruling means that Vernetta Cockerham-Ellerbee can now pursue punitive damages in her claim that the town and police department -- which are defendants in a 2004 lawsuit filed by Cockerham-Ellerbee -- are guilty of "willful or wanton conduct." The lawsuit alleges that police failed to enforce a protective order against her estranged husband, Richard Ellerbee, who killed 17-year-old Candace Cockerham and stabbed Cockerham-Ellerbee before committing suicide.
The trial is scheduled to be heard in October in Yadkin County Superior Civil Superior Court. The purpose of punitive damages, according to the Court of Appeals is two-fold: to punish the wrongdoing of the defendant and to deter others from engaging in similar conduct.
State law generally does not allow individuals to bring negligence actions against municipalities or police officers for failure to provide protection from a third party's crimes. However, exceptions are allowed in negligence suits when the law enforcement officer's conduct is deliberate or intentional.
In November 2004, two years after the murder-suicide, Cockerham-Ellerbee filed a wrongful death lawsuit against Jonesville officials, alleging that police failed to take appropriate measures to arrest Richard Ellerbee when they knew she had taken out a domestic violence restraining order against him, prohibiting Ellerbee from coming within 250 feet of her. Cockerham-Ellerbee told police a day prior to the assault that Richard Ellerbee had dug graves for his two victims in front of her house, about 150 feet from the Jonesville Police Department. Candace Cockerham, then a senior at Starmount High School, was found dead on Nov. 19, 2002 with multiple stab wounds and duct tape over her mouth. Vernetta Cockerham-Ellerbee managed to survive the attack, leaving a trail of blood as she walked to the police department. Police immediately blocked off the area and school officials placed nearby Jonesville Elementary School in "lockdown" mode. A week after the bloody rampage, Ellerbee's burning body was found in a New Jersey park. He had apparently purchased gasoline and set fire to himself. In the days leading up to her daughter's death, Cockerham-Ellerbee said that her estranged husband, who was living in Elkin at the time, broke into her house on Main Street and stole some valuable jewelry, began stalking her and threatening her children. Police passed up two opportunities, Cockerham-Ellerbee contends in her lawsuit, to arrest Richard Ellerbee despite her repeated warnings. In a May 2007 affidavit, Cockerham-Ellerbee recalled the last hours she spent together with her daughter and how she was counting on Jonesville police to ensure their safety. "My daughter, Candace, and I relied upon these officers' promise of protection," she says in her affidavit. "We had no reason to believe that the officers would not arrest Richard Ellerbee right then . . . My children and I had dinner that night, went to bed, and felt that we were safe." All of that changed the following morning. "The next day Richard Ellerbee stabbed me and cut my throat. He was apparently lying in wait," Cockerham-Ellerbee's affidavit says. "I did not find out until several days later that he had already murdered my daughter, Candace, inside the house while I was out on my errand." During the May 14, 2007 trial in Yadkin County Superior Court, Cockerham-Ellerbee's attorney, Harvey L. Kennedy, told Judge Michael E. Helms that Ellerbee had made it clear he intended to kill his estranged wife. "He left a death note. A death note in his own handwriting, and of course, she was familiar with his handwriting," Kennedy told the court. "The death note says that 'I'm going to kill you.'" William L. Hill, who is representing the town and the police department, said at the court hearing that it would be up to a jury, not a judge, to determine whether the police officers actually promised that they would arrest Richard Ellerbee. "The issue of whether Scottie Vestal made a promise on that day at that time is hotly contested," Hill said. "The court cannot step in and decide that issue. That would be for twelve people to decide."
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