Claimant, a man of mature years but a mental defective, represented by his guardian ad litem, has received a substantial monetary award based upon a finding that the State was liable for the negligent acts of one Robert Thompson, to whom a State school had committed the custodial care of claimant. The latter in September, 1959 received .serious permanent injuries, while working as a farm hand for Thompson, when he fell .some 40 feet from the top of a scaffold erected on the outside of a silo.
*358The custodial contract had been made with Bobert Thompson, who was not present at the time of the accident, but his father, Harold Thompson, was there and directing the operation. While there was no formal proof of a partnership it could be found that the farm was operated as a joint venture. The father-owned the farm and the son testified— I more or less run it. If there is money left over * * he gets all of it.” It further could be found from the testimony of the son that with his authorization the father had come to the farm to refill the silo. It follows that the father and son, as joint adventurers, would be liable to claimant for a wrongful act committed in conducting the joint enterprise (48 C. J. S., Joint Adventures, § 14, subd. e, p. 870). In any event there is clear proof that at the time of the accident the father was acting as an authorized agent for his son.
All members of the court agree that there is ample proof of the negligence of the Thompsons and freedom from contributory negligence on the part of claimant. The area of disagreement centers upon the degree of care imposed upon the State in the light of the relationship among the State, Bobert Thompson, and claimant.
In 1947 when claimant was 13 years old he was committed as a mental defective to a State school. He reached his educational peak at the third grade level. He was first placed on convalescent status in 1952 on a farm with one Banks. Although then 18 years of age he had a mental age (according to the records of the school) of 9 years and an I. Q. of 61.
The order of commitment adjudged claimant mentally defective and certified him to the school—“ an institution for the custody and treatment of the mentally defective ”. A mental defective is one who is not mentally ill but who is ‘ ‘ incapable of managing himself and his affairs [and] who for his own welfare or the welfare of others or of the community requires supervision, control or care” (Mental Hygiene Law, § 2, subd. 9). After commitment to his custody, the director of the institution may keep a patient at the institution, assign him to family care, place him on convalescent status, or discharge him.
If assigned to family care, the patient is boarded with a family in the community at the expense of the institution. A mental defective so placed continues to remain a patient of the institution until discharged therefrom (Mental Hygiene Law, § 34, subd. 12).
Convalescent status (Mental Hygiene Law, § 132 — since 1963 denominated “ Community status ”) had its origin in the parole *359concept. (Cf. Mental Deficiency Laws of 1919, ch. 633, § 38.) Briefly stated, patients released in that status free the institution from liability for support and place it upon the person in whom custody is placed. But the transfer of “ custody ’ ’ would appear to be more a physical than a legal act. The new custodian must report the physical, moral, and mental condition of the patient to the institution, the patient must be accessible to representatives of the institution, and upon satisfactory evidence the status may be terminated by the director and the patient returned to the institution. Thus, complete legal control of the patient remains with the State.
In passing it should be said that all members of the court see a clear distinction between family care and convalescent status. Family care is an intermediate step between confinement in the institution and release on convalescent status and those so cared for, as heretofore stated, continue as patients of the institution. Therefore, we all agree that Hendler v. State of New York (33 Misc 2d 171). relied on by the trial court, is distinguishable from the case before us.
We are met at the threshold by the decision in Excelsior Ins. Co. v. State of New York (296 N. Y. 40). There a mental defective, who had “ eloped” from a State school caused fire damage. Claimants (the owner of the property and his subrogees) were denied recovery from the State upon the ground, among others, that the supervision and treatment of the inmate by the school authorities were proper and reasonable under the circumstances. There the court, as it stated, was confronted with striking a balance between the duty of the State to care for its mentally defective wards and the concern of the State that the inmates of its institutions should cause no injury or damage to the property of those in the vicinity.
But here we are considering the duty of the State to the undischarged inmate. The distinction was recognized in the Excelsior decision (supra) where it was written (p. 44) : ‘ ‘ Toward the inmate Flood, the State had a ‘ quasi-parental power ’—bound, Sir Frederick Pollock has observed, to use more diligence in informing itself what treatment was proper for him than a parent would be bound to use. (Pollock on Law of Torts [new American ed., 1894], pp. 150-151.) ” We recognize the necessity of again (as suggested in Excelsior, p. 46) striking a balance between keeping mental defectives in close confinement and under constant surveillance or the modem concept “ of allowing the moron a freedom of action -without close and continual watching ’ \ But in permitting such freedom of action the State in its quasi-parental relationship owes to the *360inmate .the duty of .exercising reasonable care that he shall not be exposed to unnecessary dangers.
We briefly describe the accident herein. The Thompsons were attempting to complete the filling of a silo. It was necessary to raise a pipe weighing some 200 pounds from the ground to the top of the silo. Claimant was directed to ascend the outside of the silo to a platform some 40 feet above the ground. The platform was 3 feet square and had no railings. The only handhold was the next highest ring on the silo. Claimant was on the platform some five minutes while the pipe was being raised from the ground. It appears claimant was given no instructions as to the part he was to play in the operation as Harold Thompson testified that “he (claimant) knew what he was supposed to do ’ ’. But apparently he did not know what he was supposed to do. Actually claimant was supposed to guide the pipe as it moved upward and keep it a few inches from the exterior of the silo until it was in place. Instead, claimant grasped the pipe and was attempting to pull it upward when he fell from the unguarded platform.
: Jurisdiction is inherent in the state over unfortunate persons within its limits who are idiots or have been deprived of the use of their mental faculties. It is its duty to protect the community from the acts of those persons who are not under the guidance of reason, and also to protect them, their persons and property from their own .disordered and insane acts.” (Sporza v. German Savs. Bank, 192 N. Y. 8, 14.) Thus, it has been frequently held that the State owes the mental defectives and insane persons committed to its care the duty of protecting them against the negligence of its own employees and agents and of protecting them against self-inflicted harm. (Martindale v. State of New York, 269 N. Y. 554; Gioia v. State of New York, 22 A D 2d 181; Minotti v. State of New York, 18 A D 2d 769; Grasso v. State of New York, 177 Misc. 690, affd. 264 App. Div. 745, affd. 289 N. Y. 552.) Moreover, the State’s liability for the torts of its agents extends to employees of a private institution to whose custody the State has committed its inmate (Paige v. State of New York, 269 N. Y. 352).
The issue here presented is whether the State upon making a contract with another for custodial care of a mental defective is thereby relieved from further liability even though the negligent act of the contract custodian involves subjecting the patient to a situation where it can be said that his mental defect renders him incapable of protecting himself from harm or if in this narrow area the negligence of the custodian occurs in his capacity as agent of the State with resulting liability of the *361latter. We recognize that a strong argument may be made that the imposition of such liability upon the State might well tempt the latter “ to revert to the outmoded and disadvantageous system of confining the mental defective ”. (Excelsior Ins. Co. v. State of New York, supra, p. 46.) But a contrary holding might equally tempt the State to enter into custodial care agreements unmindful of its duty to protect these unfortunates from injury caused by the negligence of the selected agent of the State and the mental incapacity of the patient.
It is no new concept that liability may be imposed upon the State for a negligent act performed by a third party acting as its agent (cf. Maltby v. County of Westchester, 267 N. Y. 375). (See, also, Pantess v. Saratoga Springs Auth., 255 App. Div. 426.) The duty imposed upon the State was one from which it could not be freed short of absolute discharge of the patient. The negligence of its selected agent (with minimal supervision on the part of the State) in placing claimant in a position of peril with resulting injury to him was imputable to appellant.
The judgment should be affirmed.