Santangelo v. State
| Decision Date | 09 February 1987 |
| Citation | 511 N.Y.S.2d 666,127 A.D.2d 647 |
| Parties | Joseph SANTANGELO, Appellant, v. The STATE of New York, etc., Respondent. Fred KIRSCHENHEITER, Appellant, v. The STATE of New York, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Michael F. Mullen, Huntington, for appellant (one brief filed).
Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Vernon Stuart, of counsel), for respondent.
Before MANGANO, J.P., and BRACKEN, NIEHOFF and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In negligence claims to recover damages for personal injuries sustained by police officers during the apprehension of a State mental hospital escapee, the claimant Joseph Santangelo appeals from a judgment of the Court of Claims (Benza, J.), dated July 26, 1985, and the claimant Fred Kirschenheiter appeals from a judgment of the same court, dated July 26, 1985, which, after the presentation of evidence by the parties, dismissed the respective claims. 129 Misc.2d 898, 494 N.Y.S.2d 49.
ORDERED that the judgments are affirmed, without costs or disbursements.
On July 15, 1979, Police Officers Joseph Santangelo and Fred Kirschenheiter responded to a call for assistance from the uncle of Brian Bordes, an escaped Kings Park Psychiatric Center patient. During the officers' attempt to apprehend Bordes, a struggle ensued and both officers were injured as a result of knife wounds inflicted by Bordes.
Based on the manner in which Bordes was confined, and given his many successful escapes, three of which were accomplished in the same manner, the record clearly indicates an unreasonable and careless attitude on the part of the State toward the safety of the public as it related to the custody and supervision of this dangerous psychiatric patient. The hospital's discharge of Bordes 30 days after his escape was also not in accordance with the Department of Mental Hygiene regulations and policy manual. Thus, the Court of Claims correctly found that the State was negligent in permitting Bordes to escape and in failing to comply with the applicable regulations (14 NYCRR 37.1, et seq.), and the policy manual provisions regarding escaped patients, which negligence was the proximate cause of the claimants' injuries.
However, despite the finding of negligence on the part of the State, the officers' claims were properly dismissed. The Court of Appeals has recently held that, even with the enactment of CPLR article 14-A, the assumption of risk doctrine may still act...
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...State based on its institution's allowing the escape. ( Santangelo v. State of New York, 129 Misc.2d 898, 494 N.Y.S.2d 49, affd. 127 A.D.2d 647, 511 N.Y.S.2d 666, affd. 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra [hereinafter Santangelo I ].) The affirmance at the Court of Appeal......
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