Gerbino v. State

New York State Court of Claims

Gerbino v. State

201 Misc. 3, 109 N.Y.S.2d 862, 1952 N.Y. Misc. LEXIS 2367

CourtNew York Court of Claims

DecidedJanuary 15, 1952

DocketClaim No. 30529

StatusPublished

Cited by1 cases

This text of 201 Misc. 3 (Gerbino v. State) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gerbino v. State, 201 Misc. 3, 109 N.Y.S.2d 862, 1952 N.Y. Misc. LEXIS 2367 (N.Y. Super. Ct. 1952).

Pincite

Opinion

Gorman, J.

The claim is one to recover damages for an assault committed upon the infant claimant, September 7, 1949, by an employee of the Newark State School. The boy was admitted to the institution, October 12, 1947, as a mental defective. The State then assumed responsibility for his reasonable care and protection. The proof shows an unprovoked and brutal assault by an attendant, acting within the scope of his authority and employment. Another attendant was passively present at the scene. Neither employee reported the beating until the next day when the injuries became more apparent. The transgressor had been involved in at least one previous fracas with the inmates. The State knew this and might reasonably have anticipated a similar occurrence. The State failed to exercise the degree of care required under the circumstances.

As a result of the assault, the infant claimant’s jaw was fractured and he suffered pain. The fracture was reduced on September 12, 1949, by intermaxillary wiring and the jaw immobilized for six weeks. During this period, he subsisted on liquids. His recovery has been good.

Claimant is entitled to an award against the State of New York in the sum of $1,800. Findings in accordance with this opinion may be submitted within fifteen days from the date hereof, otherwise this memorandum will be considered the decision herein.

Let judgment be entered accordingly.

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Gorman, J.

The claim is one to recover damages for an assault committed upon the infant claimant, September 7, 1949, by an employee of the Newark State School. The boy was admitted to the institution, October 12, 1947, as a mental defective. The State then assumed responsibility for his reasonable care and protection. The proof shows an unprovoked and brutal assault by an attendant, acting within the scope of his authority and employment. Another attendant was passively present at the scene. Neither employee reported the beating until the next day when the injuries became more apparent. The transgressor had been involved in at least one previous fracas with the inmates. The State knew this and might reasonably have anticipated a similar occurrence. The State failed to exercise the degree of care required under the circumstances.

As a result of the assault, the infant claimant’s jaw was fractured and he suffered pain. The fracture was reduced on September 12, 1949, by intermaxillary wiring and the jaw immobilized for six weeks. During this period, he subsisted on liquids. His recovery has been good.

Claimant is entitled to an award against the State of New York in the sum of $1,800. Findings in accordance with this opinion may be submitted within fifteen days from the date hereof, otherwise this memorandum will be considered the decision herein.

Let judgment be entered accordingly.

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Bluebook (online)

201 Misc. 3, 109 N.Y.S.2d 862, 1952 N.Y. Misc. LEXIS 2367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerbino-v-state-nyclaimsct-1952.

Opinion

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