Opinion
November 5, 1970
Appeal from a judgment in favor of the claimant, entered January 15, 1970, upon a decision of the Court of Claims. Shortly after 7:30 P.M. on December 13, 1965 claimant, aged 10 1/2, a patient at the Kings Park State Hospital, was injured while he was getting dressed, when another patient fell from an eight-foot high metal rack as he attempted to get his coat. Claimant was assigned, with approximately 30 other boys, to Ward 220, which consisted of a dormitory and dayroom, each 60 feet by 60 feet, a clothes room 10 feet by 15 feet (the room in which the accident happened), 15 private rooms, and an office. One Merino was the only attendant on duty in the ward at the time of the accident. He did not witness the accident which was testified to by another patient, aged 13. The trial court based its decision for the claimant on the ground that the State failed to provide adequate supervision of the ward. We cannot agree. The State is required to use reasonable care to protect the patients at its institutions from injury. (See Shattuck v. State of New York, 166 Misc. 271, affd. 254 App. Div. 926.) The cause of injury, however, must be one that the State could reasonably foresee before liability attaches. ( Flaherty v. State of New York, 296 N.Y. 342; Di Fiore v. State of New York, 275 App. Div. 885.) While the claimant and the other patients were mentally ill, there is nothing in the record to indicate they were of dangerous character or assaultive disposition. Consequently, they did not require the type of supervision required of patients with those known tendencies. The degree of reasonable care is measured by the physical and mental infirmities of the patients as the hospital officials and employees know them. ( Scolavino v. State of New York, 187 Misc. 253, 261, mod. 271 App. Div. 618, affd. 297 N.Y. 460.) There is no evidence in this record that one attendant during the evening hours was not adequate under the existing circumstances. We conclude under all the circumstances that the record does not substantiate the finding of inadequate supervision and the incident was one which the State could not reasonably foresee and, therefore, in our opinion, it is not liable. To require constant supervision would place an undue burden upon the State, and it is doubtful whether it would have prevented the accident. ( Flaherty v. State of New York, supra, p. 346.) Judgment reversed, on the law and the facts, and claim dismissed, without costs. Reynolds, J.P., Staley, Jr., Cooke and Sweeney, JJ., concur; Greenblott, J., dissents and votes to affirm in the following memorandum: I dissent and vote to affirm. In my opinion, the State was guilty of negligence in failing to perform its duty of supervision over the activities of the children under its care at the State hospital. It is the duty of the State, in the operation of its hospitals and institutions to protect its wards against "hazards reasonably to be foreseen" ( Flaherty v. State of New York, 296 N.Y. 342, 346, supra), and to "take every reasonable precaution" ( Castiglione v. State of New York, 25 A.D.2d 895). This requires it to exercise reasonable care in providing them with safe and suitably supervised living quarters. It is not unreasonable to require the State to foresee that an injury might occur when 30 mentally ill, active and unruly children were supervised by only one attendant who, at times, had to leave them alone to get dressed. This is especially true when a dangerous condition, i.e., the unsecured metal clothing racks, was allowed to exist in the room. Of course, constant supervision is not required. However, it is reasonable to require better supervision of these children than what was present. The proof supports this conclusion when one considers the testimony of Merino and Lane. Lane testified that the patients placed their clothes on the top of the racks and climbed up on the racks to retrieve them, and that he told Merino and other attendants about this; and, also, that Merino had observed a child on the top of the racks playing hide-and-seek. Merino testified that he had requested assistance from his superiors daily, but none was forthcoming. The facts support the conclusion that the risk of injury was reasonably to be perceived. From this record it is obvious that the presence of one attendant in the ward during the evening hours was not adequate under the circumstances.