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COURT OF CLAIMS OF NEW YORK Claim No. 47796 1969.NY.41155 <>; 299 N.Y.S.2d 288; 59 Misc. 2d 306 April 16, 1969 JOHN S. BENNETT, JR., CLAIMANT,v.STATE OF NEW YORK, DEFENDANT John B. Cartafalsa for claimant. Louis J. Lefkowitz, Attorney-General (William T. McCue of counsel), for defendant. Caroline K. Simon, J. Author: Simon

Caroline K. Simon, J.

Author: Simon

 Claimant, a patient in Queens General Hospital, on the morning of December 6, 1966 was transferred by ambulance to Creedmoor State Hospital on a two-physician certificate. He arrived at the latter institution at about 9:30 a.m. His hands were hancuffed behind his back. He was accompanied by an ambulance attendant and two police officers of the 110th Precinct.

Mr. Bennett, then 22 years old, was admitted to Building 40 by a senior psychiatrist, who termed him "restless", "insulting", and "not cooperative". He was assigned to Ward 11B located on the eleventh floor of that building. The supervising nurse on the main floor asked permission of the police officer to have the patient taken up to the ward by attendants, who would remove the handcuffs there, returning them and the borrowed key to the policeman waiting in the admissions office. This permission was granted.

Three attendants then escorted Mr. Bennett to the elevator on the main floor. In a subsequent investigation by the Associate Director of the Hospital, two of these attendants stated that the patient became verbally abusive during the elevator trip and was struck in the face by the third attendant. Claimant received a fractured jaw from the blow.

Notice of intention to file a claim was received and filed by the Clerk of the Court of Claims and the Department of Law on February 7, 1967. The claim itself was timely filed in both offices on February 24, 1967. It alleges negligence of the State of New York in its failure to protect Mr. Bennett from the dangerous and vicious acts of an employee, causing pain and suffering, and the aggravation of a nervous disorder requiring protracted treatment of a depressive reaction. It seeks damages of $78,716.95, which include $1,216 as loss of earnings, medical and hospital expenses of $2,500.95 and $75,000 for personal suffering. The claim has neither been assigned nor tried nor brought before any other court or tribunal for determination.

Mr. Bennett testified that he was struck in the face at least once, and fell to the floor of the elevator. He then lapsed into unconsciousness and his next recollection was lying down in a small room, covered with blood. He said his handcuffs were then removed, he was undressed and cleaned up, and an injection was given to him. He said the pain was quite intense and that he could not sleep for days. He was put to bed and returned to Queens General Hospital by ambulance accompanied by one attendant and without handcuffs.

There he was examined by a dentist, and after some days' observation his jaw was wired. He was unable to eat solid foods for one and one-half months thereafter while his mouth remained immobilized. On December 13, 1966 Mr. Bennett was discharged from Queens General Hospital and returned to Creedmoor. Later he was discharged from Creedmoor to his parents' custody. The wires in his jaw were removed by a private physician. He described the removal as a painful process. He stated that after the wires were out he could eat soft foods, although his jaws, teeth, eyes and face ached for some period thereafter.

On cross-examination Mr. Bennett testified that he was admitted to Loudon Hall in the Brunswick Hospital Center, Amityville, New York where he remained under psychiatric treatment until discharged on November 7, 1967. He added that he still receives private psychiatric treatment from a doctor affiliated with that institution.

The Bennett family dentist testified that he examined claimant on November 30, 1967. He had been informed that Mr. Bennett had sustained a fractured jaw. In his examination he found fillings and chips in the teeth requiring grinding and restoration. He performed this work, which in his professional opinion was directly attributable to the fracture and the wiring. In addition, the dentist stated that further dental work was necessary, and that the need for such work also was the direct result of the injury inflicted upon claimant.

Another attendant present at the attack testified to knowing "No apparent reason why" the patient was hit, adding that though Mr. Bennett was verbally abusive he did not strike his assailant nor make any provocative movement toward him.

Pursuant to ยง 75 of the Civil Service Law, a hearing in the matter of disciplinary charges against the offending attendant who hit this claimant was held at Creedmoor on December 20, 1966. The hearing officer recommended dismissal, and the attendant's services were thereafter terminated. He was later charged with felonious assault, which charge was reduced to third degree assault. A conviction in the New York City Criminal Court resulted and a sentence of six months in the workhouse was imposed.

The court finds that the attendant did intentionally, knowingly and willfully strike the claimant and that the assault was not provoked by physical attack nor warranted under the circumstances by the verbal abuse. Just as the State is held to have constructive notice of defects in roads under its sole control, so it must be held to have constructive notice of the temperament and proclivities of personnel it selects to staff its mental institutions where the delicate task of rebuilding warped, ill people is undertaken. The assault was the proximate cause of claimant's injuries. The court further finds the patient was mentally ill, and that his verbal abuse was not of such a nature as to be used in mitigation of damages nor to warrant a finding of contributory negligence. (See St. Pierre v. State of New York, 33 N. Y. S. 2d 151.)

The injuries which claimant suffered were serious and extremely painful, and caused permanent damage to him. Although Mr. Bennett testified that he can chew, bite and talk as he did before the traumatic event, his dentist states his teeth require further remedial work to be in alignment.

Proof was adduced that six months earlier the assailant in this claim had hit a fellow worker. After a hearing it was found that no blame attached to the striking attendant. The court would not premise a finding that the State had notice of the assailant's proclivities to do physical injury on the hearing ...

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