Santangelo v. State

• Decision Date: 28 June 1985
• Citation: 494 N.Y.S.2d 49,129 Misc.2d 898
• Parties: Joseph SANTANGELO, Claimant, v. The STATE of New York, Defendant. Fred KIRSCHENHEITER, Claimant, v. The STATE of New York, Defendant. Claim NOS. 63380, 63381.
• Court: New York Court of Claims

Page 49

494 N.Y.S.2d 49

129 Misc.2d 898

Joseph SANTANGELO, Claimant, v. The STATE of New York, Defendant.

Fred KIRSCHENHEITER, Claimant, v. The STATE of New York, Defendant.

Claim

NOS. 63380, 63381.

Court of Claims of New York.

June 28, 1985.

Kelly, Luglio & Costello by James J. Kelly, Deer Park, for claimants.

Robert Abrams, Atty. Gen. by Ronald Glickman, Asst. Atty. Gen., for defendant.

LOUIS C. BENZA, Judge.

Brian Bordes escaped from the Kings Park Psychiatric Center (hereinafter referred to as Kings Park) on May 17, 1979. The claimants, Suffolk County police officers, were seriously injured by Bordes when they attempted to apprehend him on July 15, 1979. The claims seek recovery for these personal injuries on two independent theories, common law negligence in permitting a dangerous patient to escape, and violation of applicable State regulations requiring that notice of the escape be given to those threatened by the escapee.

Brian Bordes, who was 23 years old at the time of this violent and disastrous attack on the claimants, had a long history of mental illness and antisocial behavior. According to the Kings Park hospital record (Exhibit 3), Bordes' first admission to said hospital was on October 29, 1974; subsequently, over the next several years, he was hospitalized an additional four times. On February 2, 1979, Kings Park applied to the County Court in Central Islip for a six-month order of retention which was granted. Said order was to expire on August 1, 1979 (Exhibit 3, pp. 82 and 84; Exhibit 16, EBT of Dr. Messih, Chief of Service, Kings Park, p. 77). From the date of Bordes' first admission at Kings Park to May 17, 1979, the date of his last escape from Kings Park, Bordes escaped a total of seven times, three times by bending the bars on the porch of Ward 93, where he was maintained under close observation; emphasis added by Court.

On May 30, 1979, while Bordes was still on escape status from Kings Park, his mother and grandmother advised Dr. Jasen, a Kings Park psychiatrist, that Bordes was with his father in Florida. They gave the father's Florida address, which was written in the hospital record (Exhibit 4).

Dr. Messih testified that Bordes was discharged from escape status on June 16, 1979, pursuant to the policy manual in existence on that date. When asked what provision of the policy manual he used when discharging Bordes, the doctor stated that if the patient was on an escape status and did not return he was to be discharged 30 days from the date of escape or at the expiration of his commitment, "whichever comes first" (Exhibit 16, pp. 57 and 106).

Department Policy Manual, Section 5300--Leave Without Consent (claimants' Exhibit 1), defines pertinent portions of the procedures dealing with patients on escape status which the Court finds were not followed by the administration in Bordes' case. ¹

The record shows that a few days after June 16, the date of discharge, the Maine police called Dr. Messih to advise that they had found Bordes wandering in the woods. Dr. Messih advised the Maine police that Bordes was a patient at his hospital who had escaped and was discharged and that they, the Maine police, should bring him to a State hospital. It is apparent that if any such hospitalization did occur it did not last for long, for we find Brian Bordes appearing on July 15 at his grandmother's house in Commack, New York.

On that day, a Sunday morning, Officer Joseph Santangelo of the Suffolk County police received a phone call at police headquarters from a Mr. Vezzani, Brian Bordes' uncle. Mr. Vezzani advised Officer Santangelo that his nephew Brian Bordes was at his grandparents' home and that the caller feared for their welfare. Mr. Vezzani also advised Officer Santangelo that Brian Bordes was an escapee from Kings Park and that on other occasions he had fled when he saw uniformed officers. Before going to apprehend Bordes, Officer Santangelo called the Suffolk County teletype unit to check if there were any alarms in the patient-escapee file for Bordes. There was no outstanding alarm.

Officer Santangelo and his partner, Officer Kirschenheiter, went to Bordes' grandmother's house and found Bordes sitting on a couch in the grandmother's living room reading a newspaper. Officer Santangelo went to one side of the room and his partner to the other side. When Officer Santangelo identified himself with his police shield, Bordes became disruptive and threatening. He took a knife from his pocket and walked toward Officer Kirschenheiter. Officer Kirschenheiter sprayed mace into Bordes' face; it had no effect, and Bordes continued to advance on him. Officer Santangelo pulled his revolver and ordered Bordes to drop his knife. Bordes turned on Officer Santangelo and Officer Santangelo shot Bordes five times. The bullets did not stop Bordes and he leaped on Officer Santangelo and proceeded to inflict serious injuries with his knife. Only after a further scuffle with Officer Kirschenheiter in which he, too, was injured, was Bordes subdued and handcuffed.

Claimants assert that the liability of the State has been established upon two independent theories. The first is that the State negligently permitted the patient to escape and failed to comply with the cited State regulations regarding escaped patient recovery, with such failures being the proximate cause of claimants' injuries. Secondly, it is asserted that the patient had expressed direct threats to kill police officers, and therefore police were members of the class entitled to notification under 14 NYCRR 37.3, that said notice was not given and the State breached a special duty to the Suffolk County police, in general, and claimants, in particular.

In disputing liability, the State asserts that claimants have failed to establish that the elopement of the patient was due to the defendant's negligence; that the defendant neither owed nor breached any special duty to claimants; that the State facility promptly notified the police and relatives of the escape; that the elopement was not the proximate cause of claimants' injuries; and that claimants, as police officers, assumed the risk of harm in the performance of their duty.

A review of the facts surrounding Brian Bordes' several admissions to Kings Park leads the Court to the inescapable conclusion that the State was negligent in failing to prevent the escape of Brian Bordes and in failing to take the proper steps to apprehend him after his escape of May 17, 1979 (Dunn v. State of New York, 29 N.Y.2d 313, 327 N.Y.S.2d 622, 277 N.E.2d 647; Thall v. State of New York, 69 Misc.2d 382, 329 N.Y.S.2d 837, affd. 42 A.D.2d 622, 344 N.Y.S.2d 453). Based on the manner in which Bordes was confined, given his many successful escapes, three of which were accomplished in the same manner, the record clearly indicates a casual, almost cavalier attitude, on the part of the State toward the safety of the public as it related to the custody and supervision of this dangerous individual. The administration of this hospital in dealing with Bordes during his confinements was almost reckless in failing to more closely supervise him. The regulations of the Department of Mental Hygiene in effect at the time of Bordes' last elopement dealing with the apprehension of escaped patients were clearly ignored or improperly interpreted by Dr. Messih, contributing further to the prevention of the apprehension of Bordes. Dr. Messih's discharge of Bordes 30 days after his escape, while Bordes was still subject to the February 2, 1979 order of retention, was also not in accordance with the regulations (Exhibit 1, par. C[2] ).

In no respect was Bordes properly discharged on June 16, 1979, considering either the original expiration date of August 1, 1979, or the tolling of said date as a result of the application of the above rule (Exhibit 1, par. C[2] ). Therefore, at the time of the attack on claimants, Bordes was still a patient of the hospital on escape status. In any event, patient or not, the failure of the hospital to take more positive actions to apprehend Bordes when advised of his presence in Florida and Maine was clearly in contravention of the rules, given the known dangerous propensities of this patient (Exhibit 1, par. C). Accordingly, the Court finds that the State was negligent in failing to prevent the escape of Brian Bordes and, later, in failing to take the proper steps to apprehend him (Dunn v. State of New York, supra, 29 N.Y.2d p. 313, 327 N.Y.S.2d 622, 277 N.E.2d 647, Thall v. State of New York, supra, 69 Misc.2d p. 382, 329 N.Y.S.2d 837). Further, the Court finds that this negligence was a proximate cause of the claimants' injuries, which injuries were reasonably foreseeable in view of Bordes' propensity to violence (Dunn v. State of New York, supra, 29 N.Y.2d p. 313, 327 N.Y.S.2d 622; Thall v. State of New York, supra, 69 Misc.2d p. 382, 329 N.Y.S.2d 837).

The question remaining, however, is whether the public policy of this State prohibits a policeman who is injured in the line of duty from recovering for a negligent act which creates the very need for his presence. Stated another way, and within the context of the instant claim, may claimants here, Suffolk County police officers, called on in the normal course of their duties to apprehend an individual known to them to be an escaped mental patient, directly confront this individual, sustain injuries in an attempt to apprehend him, and recover for those injuries, based on the negligence of a third party which allowed this individual to be there in the first place. In this Court's view, they may not.

Although we find a scarcity of New York case law addressing this issue, the decision in McGee v. Adams Paper and Twine Company, 26 A.D.2d 186, 271 N.Y.S.2d 698 affd. 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289, prohibited recovery by firemen and policemen for injuries sustained as a result of negligence which created the need for "the special...