This is an appeal from a judgment entered May 29, 1968, upon a decision of the Court of Claims which dismissed a wrongful death claim.
On July 6, 1962, claimants’ intestate was fatally injured when his automobile was struck by a stolen car operated by Jack Proper, an escapee from the Hudson Diver State Hospital, while
The Court of Claims dismissed the claim at the close of the evidence. While indicating that it was “inclined to agree ” that the State was guilty of negligence in permitting Proper to escape, the court held that this negligence was not the proximate cause of the accident. It also found that the State Police were not negligent in the manner in which they attempted to apprehend the driver of the stolen car.
We agree that no liability should be predicated upon the troopers’ pursuit of the stolen car. Appellants’ argument in this regard can be broken down into two parts: (1) that Proper would not have driven the car in a reckless manner if he were not being pursued, and (2) that the police were under a duty to warn persons upon the highway of the imminent approach of the fleeing automobile.
Similarly, we find no evidence of reckless conduct in the pursuit here. The troopers had the dome lights on their troop cars operating and the pursuing trooper sounded his siren intermittently. Furthermore, only about 60 seconds elapsed from the beginning of the pursuit to the collision and there was insufficient time to warn the decedent of Proper’s approach.
Whether the State was negligent in failing to prevent Proper’s escape and if so, whether such negligence was a proximate cause of the accident are more difficult questions to resolve. The State has been held liable for personal injury caused by the acts of inmates who escaped from its mental hospitals (Jones v. State of New York, 267 App. Div. 254; Weihs v. State of New York, 267 App. Div. 233; Finkel v. State of New York, 37 Misc 2d 757). However, liability has been limited to those cases where it was known that the patient required confinement and might do harm if allowed to escape (Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40; Higgins v. State of New York, 24 A D 2d 147).
In Excelsior (supra), a young mental defective escaped from the Wassaic State School and burned down a lumber yard when he started a fire to keep warm. The Court of Appeals reversed a decision of this court in favor of the claimant and dismissed the claim. Quoting Palsgraf v. Long Is. R. R. Co. (248 N. Y. 339, 344) for the rule that “ [t]he risk reasonably to be perceived defines the duty to be obeyed ” Judge Ftjld wrote (p. 45): “ we fail to find basis for the imposition of liability upon the State. The authorities at Wassaic could not reasonably have anticipated—from his history of harmless elopements — a Flood [the inmate] likely to set fires, or otherwise dangerous, while at large. That being so, and since the boy was neither insane nor criminal, it owed no duty to claimants or other members of the outside world to guard him closely or to see to it that he did not leave the institution. ’ ’
This decision has been extended to absolve the State from liability for acts of an escapee from a minimum security prison (Williams v. State of New York, 308 N. Y. 548), a truant parolee
The rule of the above cases is inapplicable here. Proper had demonstrated assaultive tendencies and the hospital authorities recognized and acknowledged the duty to prevent his escape when they placed him in a closed ward, which was reserved for disturbed and dangerous patients. In our view, the State had a duty to prevent Proper from escaping. We pass to the question of whether it negligently performed that duty. The trial court found negligence in the absence of an adequate number of attendants. The testimony revealed that the closed ward was occupied by 37 patients. It was normally supervised by two attendants, but on the night of the escape, only one attendant was on duty. It would be reasonable to conclude that the absence of the additional attendant contributed to Proper’s successful elopement from the hospital. (See Doty v. State of New York, 33 Misc 2d 330; Foster v. State of New York, 26 Misc 2d 426; Dowly v. State of New York, 190 Misc. 16.)
Finally, we come to the question of whether the State’s negligence was a proximate cause of decedent’s death. We conclude that it was. It is not unreasonable to expect that a fleeing patient would steal a car to aid in his escape and drive in a reckless manner in furtherance thereof. Secondly, a mental patient is irresponsible and the State’s liability for the acts of escaped mental patients known to be dangerous is greater than for the acts of other escapees from State institutions (cf. Williams v. State of New York, 308 N. Y. 548, supra, and Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40, supra).
The judgment should be reversed, on the law and the facts, with costs, and a new trial ordered, limited to the issue of damages.