Opinion
May 1, 1967
Appeal from a judgment of the Court of Claims, awarding the claimant $6,000, and interest for the wrongful death of Mario Santana, Jr. Decedent was a patient at the Willowbrook State School. He was six years of age, an imbecile, with an I.Q. of 27 (roughly a mental age of two). He had been mentally retarded since birth due to natal injuries, was unable to eat by himself, could not speak, could not walk without help, was a moderate spastic and was subject to convulsions and frequent colds. When he was received at the school he was undernourished, weighing 38 pounds, seven or eight pounds under normal. He died at the school a few weeks after admission of bronchial pneumonia and acute myocarditis. There was a sharp dispute as to whether there were acts or omissions on the part of the employees of the State in the care of this imbecilic infant and, secondly, if it was found that there were, whether they contributed to the decedent's demise so as to sustain a finding that the State was liable. In this close case, we cannot say that the facts foreclosed such affirmative findings by the Court of Claims. However, considering the physical and mental condition of decedent and the absence of any evidence of possible recovery therefrom there was no pecuniary loss proven, and in the complete absence of any evidence as to conscious pain and suffering by medical opinion or otherwise, we find the damages excessive and, accordingly, the award is reduced to $3,500. Judgment modified, on the law and the facts, so as to reduce the amount of the award to $3,500, and interest, and, as so modified, affirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J. [ 48 Misc.2d 1036.]