Opinion
November 30, 1970
Appeal by the State from a judgment of the Court of Claims awarding a total of $1,917.13 as damages sustained by reason of the death of her husband, a patient at Pilgrim State Hospital. The trial court, absent any supporting medical testimony, concluded that the decedent, a non-ambulatory patient, was the victim of an "unusual vicious assault" and that the State was responsible for this due to a failure of proper custody and supervision. We can find no basis in the instant record to support the trial court's determination of liability on the part of the State. The State is responsible "only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" ( Flaherty v. State of New York, 296 N.Y. 342, 346; Excelsior Ins. Co. of N.Y. v. State of New York, 296 N.Y. 40) and is not required to have someone watch each patient 24 hours a day ( Hirsh v. State of New York, 8 N.Y.2d 125; Castiglione v. State of New York, 25 A.D.2d 895). Nor, can negligence "be presumed from the mere happening of an accident. It [is] incumbent upon the part of the claimant to show affirmatively by competent evidence that the death of the decedent was caused by reason of some breach of duty on the part of the State. Negligence must be proven." ( Kowalski v. State of New York, 7 A.D.2d 762.) This was clearly not done in the instant case by any affirmative showing of a breach of duty by the State. Moreover, negligence cannot be inferred where, as here, there are other possible explanations for the injury than negligence on the part of the State ( Cole v. Swagler, 308 N.Y. 325, 331; Ruback v. McCleary, Wallin Crouse, 220 N.Y. 188, 195; Frohm v. State of New York, 34 A.D.2d 724). Accordingly, the judgment must be reversed and the claim dismissed. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.