
    Ernest Gerbino, as Guardian ad Litem of Eugene Gerbino, an Infant, Claimant, v. State of New York, Defendant.
    (Claim No. 30529.)
    Court of Claims,
    January 15, 1952.
    
      Richard H. Connors for claimant.
    
      Nathaniel L. Goldstein, Attorney-General (Harold 8. Coyne of counsel), for defendant.
   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.  