George M. Seavy et al., Appellants, v. State of New York, Respondent, 21 A.D.2d 445

Goldman, J. A 20-year-old mentally retarded but edueable young man with an I. Q. of about 60, while participating in the State’s program of Working Convalescent Care, hereinafter referred to as “ W. C. C.”, pursuant to

section 132 of the Mental Hygiene Law, allegedly set fire to a barn on claimants’ dairy farm. The barn and its contents were destroyed. In August, 1957, the claimants had entered into a placement agreement with the Rome State School, which is operated by the State Department of Mental Hygiene for the care and training of mentally retarded individuals, whereby, after having a discussion of his condition, they accepted custody of the young man as a farm worker. The fire occurred after he had worked on the farm for 11 days during which period he presented no serious behavior problem.

Claimants appeal from a judgment of the Court of Claims which dismissed after trial their claim for damages, which claim was premised on the theory that the State’s agent misrepresented the character of the patient and also that the State was negligent in transferring the young man to the Rome institution.

Claimants contend the State represented the boy as reliable, with a clean record, and suitable for farm employment while in fact he had a vicious temper, a record of mental disturbance at State institutions and of pyromaniacal propensities ; also that the State was negligent in not transferring the boy to an institution for defective delinquents under the jurisdiction of the Department of Correction (Mental Hygiene Law, § 135). The boy, whose mother had been an inmate of Wassaic State School, was himself admitted at the age of 10 in June, 1947 with a psychiatric classification of 61 Mental deficiency. Familial.

Mental Status: Moron.” His record at Wassaic indicated that on various occasions he had been disagreeable, sullen, obstreperous, disobedient, with a passive sex problem and yet at other times he was and could be well behaved. He had eloped three times. He suffered burns in February, 1951 after having spilled cleaning fluid on his body, intentionally, according to two fellow patients, and unintentionally according to his own account. He was discharged by transfer to Rome State School, hereinafter referred to as “ Rome ”, on July 19, 1956 with the remark on his record ‘ ‘ Condition unimproved ’ ’.

The transfer was made at the request of the Wassaic authorities who were experiencing trouble with a group of boys and had decided that if they were separated and moved to other institutions the situation at Wassaic could be alleviated. One of the doctors at Rome suggested to the boy that he make a fresh start and that, if he behaved himself for a year, he would be given an opportunity to be released on W. C. C. He was placed under the care of a man who had a reputation for successfully handling problem children and during his entire 13 months’ stay at Rome he showed great improvement.

His behavior at Rome was termed ‘ ‘ excellent ’ In the judgment of those charged with responsibility at Rome, the young man was ready for convalescent status. The assistant director of the school, a specialist in psychiatry for 27 years, testified that it was good medical practice to transfer the boy to community care. The trial court, from the record before us, was justified in finding that there was no misrepresentation of the history of this mentally retarded lad.

Misrepresentation is any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts (7 Encyc. New York Law, Contracts, § 2101, p. 477 et seq.; Black’s Law Dictionary [4th ed.], p. 1152). No specific representation was made by anyone that the boy would present no problem. On the contrary, one of the claimants testified that the social worker at Rome, one Olin, told claimants that if (emphasis ours) the young man made good at the Seavy home, he would be released within a year.

One of the reasons for his transfer from Wassaic, where his record indicated adjustment problems, to Rome, was to obtain vocational training. The record further indicates that the guidance and training at Rome was very beneficial. Based upon his excellent behavior record, he was recommended for W. C. C. He was doing well at his farm job for 10 days when, for some unknown reason, it is claimed he set fire to the barn. The boy’s history is devoid of pyromaniacal tendencies.

The one incident in the record where he was said to have been discovered at Wassaic with burns on his body, was at least ambiguous and certainly not definitive of any tendency to arson. -A pyromaniae does not have an inclination to self-destruction by fire. Pyromania has been defined as an uncontrollable passion or mania for house-burning (29 Am. Jur., Insane Persons, § 3, p. 142) and as an irresistible impulse to burn or set fire to things (Black’s Law Dictionary [4th ed.], p. 935).

As for the communications between Olin, the social worker at Rome, and the claimants, there is conflicting testimony as to the nature of the discussion concerning the young man’s character. Both the claimant, George Seavy, and the social worker, Olin, were contradicted by other testimony. Accordingly, an issue of credibility arose.

Although the testimony is conflicting in various respects there is no doubt as to the correctness of the court’s finding that the claimants were aware of the boy’s retardation and there is evidence to support the finding that the claimants were informed of his presence as a patient at Wassaic and of his quick temper and disagreeable behavior at Wassaic. However, it had been medically established at Rome after 13 months of observation that the young man was suitable and qualified for W. C. 0.

This was a judgment made by experts whose competence has not been challenged and who were well qualified to make such a determination. That judgment having been made, the institution’s representative was under no duty to disclose the details of the entire past history of the lad unless there was some deficiency which could foreseeably lead to particular misconduct. It should be noted that the misbehavior pattern of Wassaic was absent at Rome and on the farm. His relationship with those on the farm was good and he apparently continued his progress which was evident at Rome.

The arson incident was unrelated to any previous behavior pattern and was unforeseeable. Under such circumstances, the State is not liable (Excelsior Ins. Co. of N. Y. v. State of New York, 296 N. Y. 40). The Rome School was under no duty voluntarily to disclose the boy’s unhappy record at Wassaic, once the authorities determined from his record at Rome that he had made a good recovery and was, in their judgment, qualified for W. C. 0. as a part of his rehabilitative treatment.

True, there was a duty not to misrepresent and the Trial Judge, supported by sufficient proof to that effect, found there was no misrepresentation. Full disclosure of the details of past history of all patients would defeat the very purpose of the convalescent care program because the early history of all feeble-minded or morons would reveal that most of these unfortunate people have unattractive records, in many instances because of the impact of institutional environment which the open-door policy is attempting to avoid.

The salutary effect of participation in community living would be denied in too many instances and these people would never be given an opportunity to lead purposeful lives merely because of a past history from which they could not extricate themselves. Rome made a reasonably valid judgment concerning the propensities of the boy and his adaptability to community living. He was neither a criminal nor insane and the State was under no obligation to keep him under constant surveillance.

Unless the State is to be made the insurer against all loss resulting from the actions of the mentally retarded, claimants are not entitled to recover, even though there he an honest mistake of professional judgment (St. George v. State of New York, 283 App. Div. 245, affd. 308 N. Y. 681; Taig v. State of New York, 19 A D 2d 182) which, in our opinion, did not occur in the case at bar. It is argued that it is inconceivable that claimants would have taken custody of the boy if they had known the truth. Yet there was nothing to disclose which would have indicated a tendency to arson.

No facts were withheld or misrepresented for the simple reason that the record of the boy did not demonstrate a proclivity toward arson. It cannot be challenged that claimants knew they were hiring (incidentally at wages far below the going rate for farm hands) a mentally retarded young man. The placement agreement is ample proof of this. It is also said that the promise of employment, if he showed improvement at Borne, prompted a plot or scheme in the boy’s mind to behave merely long enough (in this case 13 months) to achieve release. Bearing in mind that this lad had an I.

Q. of 56 to 64, surely this is attributing a degree of intelligence and calculating thinking to one mentally incapable of such an exercise. This court should not substitute its view of the possible effect of good medical practice in the treatment of the mentally retarded for that of those experienced in. this highly specialized area. My dissenting colleagues emphasize the young man’s record at Wassaic but seem to give no consideration to the fact that at Borne he had risen above his prior history, made a good adjustment and proved himself capable of better things under proper environment and guidance.

To say that he never should have been sent to Borne flies in the face of his excellent record there. The language of the placement agreement is relied on by the dissenters who urge that the facts were sadly lacking although the agreement stated ‘1 after having been informed of his condition ’ ’. This language did not necessitate complete and detailed revelation as to the boy’s history. The claimants were informed the boy was mentally retarded and had been a patient with a quick temper and disagreeable tendencies at Wassaic. Again, full disclosure would have probably prevented this effort at rehabilitation.

This is not to say that if there had been a record of proclivity to arson, such a tendency should not have been disclosed even if it foreclosed community status. However, it must be left to sound medical judgment whether a person is suitable for community living and to the social worker or other agent as to precisely how much need be disclosed to the prospective employer, so long as there is no actual deception or false reply to reasonable inquiry.

A balance must be struck between the conflicting rights of a party seeking compensation for damage arising out of the acts of a mentally retarded person and the right of the patient to participate in a medically sound program of rehabilitation. A survey of progress in the field of psychiatry in the 1950’s and early 1960’s reveals a virtual revolution in the application of principles of psychiatry. The use of the open-door policy in psychiatric hospitals has been widely accepted.

Most spectacular developments have occurred during the last two decades in the area of rehabilitation where attempts have been made to return the mentally deficient to full participation in community activity. (Textbook of Psychiatry, Ewalt and Farnsworth [1963], pp. 36CG363.) Further support for the State is found in the excellent report made to Governor Dewey of a “ study of release procedures for mental patients ”. Governor Dewey’s comment on this study found in the Public Papers of Gov. Dewey (1954, p. 832) is an excellent

summary of our position in the disposition of this action: “ In a matter as vital as the restoration of the mentally ill, we must not be stampeded into unwise action by hysteria engendered by occasional, widely-publicized acts of violence. As the report points out, the matter is primarily a medical one and our basic consideration must be respect for human dignity and the rights of the individual.” The law in this field, if meaningful, must not be divorced from good medical practice. Too often the criticism is made that the Legislature lags in its reflection of the needs of both individual and community.

Legislative progress has been made in the case of mental hygiene. The Legislature having discharged its responsibility by the passage of laws favoring rehabilitation of the mentally ill, in accordance with sound medical knowledge and practice, the courts too have an equal responsibility to support that legislative policy so beneficial to these unfortunate people. We should not be obstructed and frustrated by an unfortunate incident as in the case at bar. . L. 1963, eh. 522, § 3, substituted the word “ community ” for “ convalescent ” throughout

section 132. . The record contains at best inconclusive proof that the patient actually was guilty of setting fire to the barn. He was held for the Grand Jury of Oneida County which after hearing the People’s witnesses failed to indict him for the crime of arson. The State does not, however, contest the claimants’ contention that the patient was responsible for the fire and therefore this very important question is not at issue.