Kress v. City of Newark

• Decision Date: 28 January 1952
• Docket Number: No. A--56,A--56
• Citation: 8 N.J. 562,86 A.2d 185
• Parties: KRESS v. CITY OF NEWARK.
• Court: New Jersey Supreme Court

Page 562

8 N.J. 562

86 A.2d 185

KRESS v. CITY OF NEWARK.

No. A--56.

Supreme Court of New Jersey.

Argued Dec. 3, 1951.

Decided Jan. 28, 1952.

Charles Handler, Newark, argued the cause for the appellant (George B. Astley, Newark, on the brief).

John A. Laird, Newark, argued the cause for the respondent (Roskein & Laird, Newark, attorneys).

The opinion of the court was delivered by

ACKERSON, J.

The plaintiff, Margaret Kress, married and 41 years of age, instituted this action on June 30, 1948, in the former Essex County Court of Common Pleas against the City of Newark to recover damages for personal injuries consisting of a cancerous condition of both hands known as carcinoma. It is alleged that this condition developed from overexposure to X-ray radiations while she was employed as a technician in the X-ray Department of the Newark City Hospital, established and maintained as a public hospital by the city pursuant to R.S. 30:9--16 et seq., N.J.S.A. The gravamen of the complaint is the alleged failure of the defendant city to provide its employee with a reasonably safe place to work. Specifically it is charged that defendant violated its duty in that it 'failed to supply proper protective devices, failed to warn * * * plaintiff of the dangerous emanations from said X-Ray apparatus and failed to apprise her of the fact that such safeguards as it did supply were substandard and ineffective.' Defendant's answer denied the charges of negligence and set forth two separate defenses, (1) contributory negligence and (2) that plaintiff's exclusive remedy was under the Workmen's Compensation Act pertaining to public employees. R.S. 34:15--43 et seq., N.J.S.A.

The action was tried in the Essex County Court, Law Division, in November, 1949 (after the effective date of the Judicial Article of the Constitution of 1947), resulting in a judgment of involuntary dismissal which, on appeal to the Superior Court, Appellate Division, was reversed, Kress v. City of Newark, 9 N.J.Super. 70, 74 A.2d 902 (1950), and the cause remanded for a new trial. The case was retried in the Essex County Court, Law Division, in June, 1951, resulting in a verdict of $90,000 for the plaintiff. From the judgment entered thereon defendant again appealed to the Appellate Division and, while pending there, we took jurisdiction of the appeal on our own motion.

The present appeal is directed to the trial court's denial of defendant's motion for an involuntary dismissal made after the presentation of all of the plaintiff's evidence, pursuant to Rule 3:41--2, and to the denial of defendant's motion for a new trial. Rules 3:59--1 and 2 and Rule 1:2--20.

The record discloses that Margaret Kress, a woman of limited education (grammar school only), was first employed at the city hospital in February, 1933, as a maid in one of the wards. Seven months later she was appointed and served for four years as monitor. Her duties were to escort female patients to and from the department and prepare them for X-ray. She took no part in the operation of the machines although she testified that she observed their operation and on occasions saw the technicians hold or help her in holding patients during the exposures. In 1937 plaintiff was put to work in the darkroom, developing the X-ray films. She showed evidence of mechanical skill and in 1939 was assigned to the duty of taking X-ray pictures as a technician. Plaintiff testified that she was not given a physical or other preliminary examination as to her fitness for this new position; was employed as a technician without any instruction or warning as to safety precautions to be observed, and her only experience prior thereto with respect to the operation of the machines was what she had picked up by watching the other technicians operate them.

Plaintiff produced an X-ray or radiation physicist who had been employed by approximately 50 hospitals to check and advise with respect to the protection from radiation afforded to personnel and the maintenance of correct procedures to accomplish that end. He testified (apparently without contradiction) to the standard requirements for the protection of X-ray technicians promulgated by the National Bureau of Standards (Handbook No. 20) and generally observed in hospitals. These specifications were that: (1) the head of the department is to be responsible for the safety of all employees therein; (2) each employee to be examined physically once a year and given an examination prior to employment, a general examination to determine fitness for this particular work; (3) each to have a blood count every two months, which shall be permanently recorded; (4) each technician to carry a dental X-ray film once every four months and if it shows an appreciable darkening the reason thereafter should be investigated; (5) when an X-ray machine is operated the operator should be in an adjacent room or in a lead-shielded booth within the room, and (6) each employee at the time of employment is to be given a copy of these rules and regulations and required to sign a receipt therefor. Dr. Rubenfeld, a specialist in radiology, with wide experience in many hospitals, testified that the foregoing requirements are generally recognized as standard safety measures in hospital X-ray departments. Also, that it is the duty of the person in charge to instruct the employees that they are working in an atmosphere of potential danger, the details of which are outlined in the aforesaid Bureau of Standards' bulletin and they should be furnished with a copy thereof.

There was competent evidence from which it could have been found that there was no routine physical examination or blood count of employees at the Newark City Hospital, and it appears that no records were kept concerning such matters during the period in question. It was suggested to the employees that they wear the dental films and report any darkening. No check was made to see that this was done and the technicians were permitted to develop their own films. Mrs. Kress testified she had reported such a darkening but nothing was done about it and this occurred to her knowledge with respect to two other technicians.

For about two years after beginning work as a technician, Mrs. Kress, in addition to general X-ray work, also used a dental X-ray machine three afternoons a week, principally with school children sent by the board of education, averaging from 20 to 25 patients a day and taking from 1 to 12 pictures per patient, depending upon their requirements. Often she held dental film in the mouths of children or crippled persons who were unable to hold the film steady and in so doing exposed her hands to the direct beam of the X-ray. In 1941 the children's dental work was removed to the board of health and plaintiff continued to operate a portable unit with which she took X-rays, mainly of extremities in fracture cases, in a room designated as the 'portable room.' This mobile unit was also used by her up in the wards and during surgical operations. There were two other rooms used for X-ray purposes. There is testimony that the 'portable room,' contrary to the condition existing in the other rooms, did not have a leaded booth or screen behind which a technician could stand while operating the mobile unit, although the machine itself was lead enclosed and had a timing cord, at least three feet long, attached thereto so the operator could stand that far away during an exposure. Standard Picker machines were used and there is no evidence that they were defective.

Plaintiff frequently exposed her hands to the direct rays of these machines, particularly when it became necessary to immobilize a patient to obtain an unblurred picture. She testified that she did not know and was never told of the danger of exposing herself to the direct beam of the X-ray apparatus; was never instructed to take any safety precautions in her work; was never given any book of instructions or warning, and no safety rules or regulations were posted anywhere in the department. She further testified that if a film was spoiled because a patient moved, she would be called in to see Dr. Santora, the head of the department who would say 'I don't care how you get them, if you have to sit on the patient you have got to get the picture.' Additionally the record discloses that she was not given any physical checkup and she testified that her blood count was never taken prior to the discovery of the carcinoma except on the occasion when she was operated upon for a gall bladder condition while a patient in the surgical department of the hospital. Although there were three X-ray rooms and several technicians, there was only one leaded apron and one pair of leaded gloves in the department and these seem to have been for the use of the doctor when fluoroscoping.

The plaintiff produced three of her fellow employees who had rendered years of service at the hospital during the period in question, two of whom are still employed there. Dorothy Yarrow, a clerk and general helper in the X-ray department testified that she never heard of any instructions being given regarding safety procedures; never saw any rules, regulations or printed matter with reference thereto; the so-called 'portable room' was not equipped with a lead screen or guards, and there was only one leaded apron and one pair of leaded gloves. Angela de Angelis, a fellow technician, testified that there were no definite rules laid down for the guidance of any one; no physical examinations of technicians; the only lectures or instructions given had to do with the technical aspects of taking pictures and had nothing to do with safety procedures, and there were no leaded aprons or gloves available for technicians. Catherine Rice, also a technician who had served five and one-half years in the department, corroborated the testimony of the foregoing witnesses regarding the lack of instructions, warnings, physical...