Titcomb v. State

• Decision Date: 01 December 1961
• Docket Number: No. 37191,37191
• Citation: 222 N.Y.S.2d 596,30 Misc.2d 902
• Parties: Etta M. TITCOMB, individually and as Administratrix of the Estate of Marvin Titcomb, Deceased, Claimant, v. STATE of New York. Claim
• Court: New York Court of Claims

Page 596

222 N.Y.S.2d 596

30 Misc.2d 902

Etta M. TITCOMB, individually and as Administratrix of the Estate of Marvin Titcomb, Deceased, Claimant, v. STATE of New York.

Claim No. 37191.

Court of Claims of New York.

Dec. 1, 1961.

Stephen Vinciguerra, Troy, attorney for claimant, by Arthur L. Rosen, Troy, of counsel.

Louis J. Lefkowitz, Atty. Gen., by Harold S. Coyne and Lawrence Wayne, Asst. Attys. Gen., of counsel, for the State.

ALEXANDER DEL GIORNO, Judge.

This is a claim to recover damages for the wrongful death of decedent and for conscious pain and suffering, both alleged to have been caused by the negligence of the State, and for trespass on claimant's property and for loss of services.

On October 7, 1958, at about 8:25 A.M., the State Police at the Latham station received a telephone call from the Lane Construction Company, who were the contractors on a portion of the Northway, concerning broken windshields in some cars belonging to employees. Trooper Joseph R. Garrett, Jr., assigned to the matter, proceeded to the construction shack of the company and interviewed two complainants and discovered that large stones had been thrown through the center of the windshields of two automobiles. He went to the Titcomb residence, about 150 feet from the scene, which was the last one remaining in that immediate area. At the time demolition work was proceeding along the Northway. The Titcombs had been given a few extra days before vacating their house which had been appropriated. At about 9 A.M., Trooper Garrett interviewed Etta Titcomb, mother of the deceased, and her son Norman. Garrett's testimony indicated that while Norman denied knowing anything about the broken windshields, he did state it was possible his brother Marvin, the deceased, may have had something to do with it. When Garrett asked that Marvin come out of the house to talk to him, Mrs. Titcomb went into the house, then came out and said that Marvin was in his room and would not come out. The trooper was then on the back porch. Norman then went into the house, emerging with the same report.

With the consent of the Titcombs, Garrett followed them into the house. Going to the outside of Marvin's room, which was just off the kitchen, he knocked on the door, identified himself as a trooper and stated that he wanted merely to talk to Marvin about the windshields. Marvin replied that he was not coming out. They all attempted to coax Marvin to come out, to no avail. Garrett then went back to the cars where the two complainants were waiting, and explained the situation. Within ten minutes he returned to the house. In response to his questions, the mother and brother stated that Marvin had been upset over the loss of their home due to the construction of the Northway and the loss of a newspaper delivery route he had maintained for years. He had been locking himself in his room for hours at a time, refusing to shave or have a haircut and keeping entirely to himself. Upon inquiry they told Garrett that Marvin had not been examined by a doctor; their family doctor had retired. Garrett in furtherance of his sympathy suggested to them that, if they wished, he would get Dr . McCullough, the town health officer, and have Marvin examined. He explained that if Marvin were to be committed, either one would have to sign him into the psychiatric ward. Garrett testified that they consented to examination by the town health officer and to his commitment. Garrett then asked Norman if there were any guns in the house. The latter said there was a gun which was his and was in his room. Garrett asked him to get it and put it away.

Garrett then returned to the station house, and was advised by Sergeant Sayers to call Dr. McCullough. At 11:10 A.M. he called the doctor, who was out at the time. At about 11:30 A.M., the doctor returned the call and agreed to meet the trooper at 12:30 P.M. with the Boght Community Rescue Squad. At about 12:30 P.M., Garrett returned to the Titcomb residence accompanied by Trooper Keating, where they found the doctor, and the ambulance which had arrived at about 12:15 P.M. Garrett was told by Norman that he had found his own gun and locked it in his car. According to Garrett, Norman said there might be another gun but he was neither sure there was another nor where it might be.

Troopers Garrett and Keating talked with Dr. McCullough and members of the rescue squad about the prevailing situation, outside the house, and all then discussed it with Norman. They then went into the house with Norman, where they assured Marvin through the door that they wanted to help, not harm him. No answer was forthcoming. Since the door was locked, it was argeed by all, including Norman, that the only way to remove Marvin would be to break the lock. Keating then broke the lock, and the door opened five or six inches. They were unable to see naything in the room because it was dark. The door was then slammed shut from within. Further pleading to come out proving fruitless, Keating and Garrett put their shoulders to the door, forcing it another five or six inches, at which time a bumper jack allegedly was thrown by Marvin through the door, just missing Garrett and going through Keating's legs. They pushed the door again, and then a hammer was hurled through the door by Marvin, skimming over the top of Garrett's head. Then the door was opened again for a few inches, and a chair crashed against it, parts of it going through the door. There was a barricade placed against the door inside the room, which the troopers alleged they were unable to displace.

During a subsequent conference, Trooper Keating suggested in the presence of Norman the use of tear gas to rout Marvin from the room assuring Norman that it was not toxic and would not harm Marvin. Keating stated that it was evident that this family were under a severe emotional strain and for that reason the troopers explained fully to the family every step they wanted to take to alleviate their anxiety. Keating phoned the troopers' station and asked that tear gas be obtained and that the lieutenant come to the scene. Garrett estimated the time consumed in the operation of pleading with Marvin and explaining to the family to have been about 45 minutes. As a result of the call, Lieutenant Dwyer came to the scene with Sergeant Sayers about 1:30 P.M., just after Trooper Fenelon arrived. At about the same time, Trooper Salerno and Corporal Cox arrived with a canister of tear gas known as No. 112, Federal Spedeheat Grenade. Lieutenant Dwyer, Trooper Keating, Norman and Mrs. Titcomb conferred for about 15 or 20 minutes concerning the use of tear gas. At about 1:45 P.M., Garrett knocked the upper panel out of the door and Keating dropped in the canister. Before the canister was thrown in, Garrett, Keating and one of the ambulance attendants had moved the kitchen table away from the center of the floor and had received permission from Norman to take the kitchen door off its hinges. The door was taken off, and Norman took it to the cellar. Upon the order of Lieutenant Dwyer all of the troopers' guns were removed, with the exception of that of Corporal Cox. It was explained that all this was done in their anticipation of the violent rushing out of Marvin to escape the suffocating effect of the gas.

One or two minutes after the grenade had been thrown into the room, someone yelled that Marvin had the bedroom window open. Fenelon stayed in the kitchen, Garrett went outside to see if Marvin might be trying to get out and Corporal Cox, in civilian clothes, was standing on an object by the window sill, taking the screen off. These troopers noticed that the window was open halfway from the bottom, that Marvin was leaning on the window sill on his arms, with his head resting on the same and quite motionless. Cox was trying to get hold of him to help him out of the window, but couldn't do so . Garrett went back into the house, and he and another trooper rushed the door but succeeded in getting it open only five or six inches. A breeze was blowing through the window spreading the misty gas fumes, the irritating effect and malodorous fumes forcing the troopers out in 2 or 3 minutes. The troopers affected would run out on the porch to be replaced by other troopers. In a few minutes, Corporal Cox and Norman reached in and removed the piece of furniture which had been barricading the door. They both gained entry into the room and helped Marvin to his feet. Keating gained access at about the same time through the window, and found a fish knife on the table in the room. When Marvin was taken out of the room, he was stark naked. He was placed upon a waiting stretcher, covered with a blanket and taken to the hospital. At the time of his removal from the room, Marvin was suffering, and at times gave out agonizing cries and at other times he moaned. This continued in the ambulance. In the ambulance, he vomited and frothed at the mouth, his eyes teared and he made screeching sounds. The experts testified that the decedent was undoubtedly suffering excruciating pains from the irritating effects of the gas upon his lungs and respiratory tract. The claimant's experts also explained that at first clothing is a protective shield against the gas but that when clothing becomes impregnated with gas it then is a constant irritant against the skin, which accounted for the shedding of all his clothes by the decedent.

The trip to the hospital took approximately from 10 to 15 minutes . He was received at the emergency room of the hospital at 2:15 P.M . At 3:30 P.M. he was received as a patient in the Mosher Memorial, the psychiatric section of Albany Hospital, merely upon the history furnished by the troopers and not as a result of medical findings. Upon the history received, Marvin was diagnosed as a schizophrenic paranoid. On October 8, 1958, at 4:40 A.M., some 14 hours after the throwing of the gas canister, Marvin died.

The intern who...