Margaret La Plante, as Administratrix of The Estate of John C. Olson, Deceased, Appellant,
v.
State of New York, Respondent. (Claim No. 45147.)
Court of Appeals of the State of New York.
Argued January 4, 1971. Decided January 21, 1971.Leonard J. Reich for appellant.
Louis J. Lefkowitz, Attorney-General (Douglas L. Manley and Ruth Kessler Toch of counsel), for respondent.
Concur: Chief Judge FULD and Judges SCILEPPI, BERGAN and JASEN. Dissent: Judge BREITEL. Taking no part: Judges BURKE and GIBSON.
Order affirmed, without costs; no opinion.
Judge BREITEL dissents and votes to reverse in the following memorandum: I dissent and vote to reverse and reinstate the judgment of the Court of Claims on the ground that on all the circumstances the trial court properly found as a fact with respect to this senile, disoriented, physically-feeble patient that bedside rails were required and that his accident would not or could not happen unless there were no side rails. Whether decedent sustained his accident falling from the bed and crawled away, or fell some distance from his bed, is not material. In either event, the accident would not have happened if he had been protected by side rails.