Dunn v. State

• Decision Date: 01 December 1971
• Docket Number: No. 43974,43974
• Citation: 327 N.Y.S.2d 622,277 N.E.2d 647,29 N.Y.2d 313
• Parties: , 277 N.E.2d 647 Herma D. DUNN, Individually and as Administratrix of the Estate of Herman Springhorn, Deceased, et al., Respondents, v. STATE of New York, Appellant. Claim
• Court: New York Court of Appeals Court of Appeals

Page 622

327 N.Y.S.2d 622

29 N.Y.2d 313, 277 N.E.2d 647

Herma D. DUNN, Individually and as Administratrix of the Estate of Herman Springhorn, Deceased, et al., Respondents, v. STATE of New York, Appellant.

Claim No. 43974.

Court of Appeals of New York.

Dec. 1, 1971.

Louis J. Lefkowitz, Atty. Gen. (Jeremiah Jochnowitz and Ruth Kessler Toch, Albany, of counsel), for appellant.

John T. DeGraff, Jr., Albany, Edward A. Miller and Rudolph P. Russo, Poughkeepsie, for respondents.

SCILEPPI, Judge.

In this action for wrongful death and pain and suffering, claimants' intestate, Herman Springhorn, was killed on July 6, 1962 when an automobile which he was operating was struck by another vehicle driven by Jack Proper, an escapee from the Hudson River State Hospital. It is claimed that the State is responsible for the death of Mr. Springhorn because its agents and employees negligently permitted Proper to escape, and thereafter, negligently attempted to apprehend him.

Turning to the operative facts, it was established that on August 25, 1961, Jack Proper, also known as Arthur Gates, was brought to Bellevue Psychiatric Hospital by New York City policemen after he was found sleeping in Pennsylvania Station. He was then 17 years old and his condition was diagnosed as 'psychosis with mental deficiency, severe'. Shortly thereafter, he was committed to Central Islip State Hospital for treatment and care as a mentally ill person. On April 17, 1962, Proper was transferred to Hudson River State Hospital where he was placed in an open ward. It appears that, at the time of this transfer, a bench warrant for his arrest for the crime of burglary, third degree, was attached to his record. Additionally, there is an indication that he stole two bicycles sometime prior to his initial placement in Bellevue. He became known as an agitator, a person who went around looking for trouble, and, contrary to hospital rules, was prone to excessive drinking. Proper became embroiled in a fight with a fellow patient on June 26, 1962 and also smashed a window. As a result of this incident, he was placed in a maximum security closed ward, which was reserved for the most dangerous patients in the hospital. On July 6, the night of Proper's escape, there were 37 patients in this ward and, although two attendants were supposed to be assigned to the ward to supervise these patients, only one was, in fact, on duty. At approximately 7:15 P.M. Proper and another patient overpowered the attendant, dragged him into a seclusion room, stole his keys and escaped. Proper separated from his fellow escapee and four and one-half miles away from the hospital happened upon a car with the keys in the ignition. The car was reported stolen at 11:01 P.M.

Sometime before 11:30 P.M., Troopers Held and MacGillivray of the New York State Police had their cars positioned at the intersection of Routes 9 and 9--G, near the Village of Rhinebeck. They were told on their radios that there had been a hit-and-run accident and that the driver was delivered headed north on Route 9. MacGillivray positioned his car in the intersection and Held proceeded along Route 9. After Held left the intersection, another raio message was received by both troopers that a stolen vehicle was involved. About two miles from the intersection, Held identified the stolen car as it was proceeding at about 50 miles per hour toward the intersection. Held tried to force the vehicle off the road, but it accelerated away. The trooper gave chase at about 90 miles per hour and, after approximately 1 1/2 miles, the stolen vehicle went through a red light and hit the Springhorn vehicle which was proceeding through the intersection of Routes 9 and 9--G with a green light in its favor. It was then learned that Proper was the driver of the stolen vehicle.

The Court of Claims dismissed the claim finding that the conduct of the State Police in the pursuit of the stolen vehicle did not constitute negligence. With regard to the claim that the State had negligently allowed Proper to escape, the court concluded that although the State's failure to have two attendants on duty on the night of the escape constituted negligence, such negligence was not the proximate cause of Mr. Springhorn's death. On appeal the Appellate Division reversed on the law and the facts and directed an assessment of damages. Agreeing that under Stanton v. State of New York, 26 N.Y.2d 990, 311 N.Y.S.2d 28, 259 N.E.2d 494, affg. 29 A.D.2d 612, 285 N.Y.S.2d 964, claimants had failed to show that the State Police had been negligent in the chase and apprehension of the stolen vehicle, a majority of the court concluded that the State was under a duty to prevent Proper from escaping and that this duty was breached because only one attendant was on duty to supervise the closed ward. It held that this negligence was the proximate cause of the death of claimants' intestate (Dunn v. State of New York, 34 A.D.2d 267, 312 N.Y.S.2d 61). The sole dissenter took the position that the death of claimants' intestate was not a foreseeable consequence of any act of the State and that it 'should not be held liable under the facts * * * for the remote negligent acts of the inmate, Proper, after his escape' (Id., at pp. 271--272, 312 N.Y.S.2d p. 66).

On remand to the Court of Claims, a trial on the issue of damages was conducted and a judgment in favor of claimants was entered for $33,000 plus interest; the State appeals, as of right, pursuant to CPLR 5601 (subd. (d)).

We conclude that there is no basis in the record before us for the imposition of liability on the State. Although claimants have shown that the State breached a duty which it owed to the community, that negligence was not the proximate cause of the injuries to claimants' intestate.

There is no question but that the State bears the responsibility for the protection of others in its operation of schools, hospitals and other institutions (see, e.g., Flaherty v. State of New York, 296 N.Y. 342, 346, 73 N.E.2d 543, 544). This responsibility is not, however, unlimited, but rather is circumscribed by traditional concepts of duty (Excelsior Ins. Co. of N.Y. v. State of New York, 296 N.Y. 40, 69 N.E.2d 553; Williams v. State of New York, 308 N.Y. 548, 127 N.E.2d 545). In other words, as stated in Palsgraf v. Long Is. R.R. CO., 248 N.Y. 339, 344, 162 N.E. 99, 100: 'The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension'. This test, 'has, in principle, been consistently applied by the courts in determinating whether to impose liability upon the State where injury befalls the patient who elopes from a public institution (cf. Calabria v. State (289 N.Y. 613, 43 N.E.2d 836), Supra; Martindale v. State of New York, 269 N.Y. 554, 199 N.E. 667; Shattuck v. State of New York, 166 Misc. 271, 2 N.Y.S.2d 353, affd. 254 App.Div. 926, 5 N.Y.S.2d 812) or a third person who is assaulted by an escaped inmate of a mental hospital (Weihs v. State of New York, 267 App.Div. 233, 45 N.Y.S.2d 542; Jones v. State of New York, 267 App.Div. 254, 45 N.Y.S.2d 404), or where property is damaged by such an inmate. (Benson v. State, Ct.Cl., 52 N.Y.S.2d 239.)' (Excelsior Ins. Co. of N.Y. v. State of New York, 296 N.Y. 40, 45, 69 N.E.2d 553, 555, Supra).

Applying these principles to the case...