Jones v. United States

• Decision Date: 04 September 1968
• Docket Number: Docket 31883.,No. 345,345
• Citation: 399 F.2d 936
• Parties: Herman J. JONES, as Administrator of the Estate of Lawrence P. Jones, Deceased, Herman J. Jones and Genevieve Jones, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. UNITED STATES of America, Third-Party Plaintiff-Appellant, v. HAWKES AMBULANCE SERVICE, INC., Third-Party Defendant-Appellee. HAWKES AMBULANCE SERVICE, INC., Fourth-Party Plaintiff-Appellant, v. METROPOLITAN EQUIPMENT CORPORATION and Superior Coach Corporation, Fourth-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

399 F.2d 936 (1968)

Herman J. JONES, as Administrator of the Estate of Lawrence P. Jones, Deceased, Herman J. Jones and Genevieve Jones, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

UNITED STATES of America, Third-Party Plaintiff-Appellant, v. HAWKES AMBULANCE SERVICE, INC., Third-Party Defendant-Appellee.

HAWKES AMBULANCE SERVICE, INC., Fourth-Party Plaintiff-Appellant, v. METROPOLITAN EQUIPMENT CORPORATION and Superior Coach Corporation, Fourth-Party Defendants-Appellees.

No. 345, Docket 31883.

United States Court of Appeals Second Circuit.

Argued March 20, 1968.

Decided September 4, 1968.

Lionel Alan Marks, New York City, for plaintiffs-appellants; David M. Palley, New York City, on the brief.

Lawrence W. Schilling, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. and Alan G. Blumberg, Asst. U. S. Atty., Southern District of New York on the brief), for defendant-appellee and third-party plaintiff-appellant.

Raymond C. Green, New York City (Joseph M. Soviero, New York City, on the brief), for third-party defendant-appellee-appellant, Hawkes Ambulance Service, Inc.

Edward L. Milde and James M. Gilleran, New York City, on the brief for fourth-party defendant-appellee, Metropolitan Equipment Corp.

Sheila L. Birnbaum, New York City (Emile Z. Berman, A. Harold Frost and Howard Lester, New York City, on the brief), for fourth-party defendants-appellees, Superior Coach Corporation.

Before LUMBARD, Chief Judge, FRIENDLY, Circuit Judge, and BLUMENFELD, District Judge.^*

LUMBARD, Chief Judge.

Plaintiffs appeal from a judgment dismissing the complaint after a nonjury trial before Judge Weinfeld in the Southern District of New York. The action was brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, to recover damages for the alleged wrongful death of Lawrence Jones, an employee of Hawkes Ambulance Service, who sustained fatal injuries when he fell from a moving ambulance on March 25, 1963. At the time of the accident Hawkes was rendering ambulance services for the Veterans Administration Hospital in New York City, and Jones was acting as an ambulance attendant in transporting Paul Hefko, a mental patient of the Veterans Administration, from New York City to the Veterans Administration Hospital at Northport, Long Island. Judge Weinfeld found that the United States was negligent in allowing the trip to be undertaken without a trained, experienced ambulance attendant, but that the plaintiffs had failed to establish that this negligence was the proximate cause of Jones' death. He therefore dismissed the complaint. He also dismissed the third-party complaint of the United States against Hawkes and the fourth-party complaint of Hawkes against Superior Coach Corporation, the manufacturer of the ambulance, and Metropolitan Equipment Corporation, its distributor. Both the United States and Hawkes have taken protective appeals from the portion of the judgment dismissing their respective complaints. For the reasons stated below, we reverse the judgment of the district court and remand.

The facts, stated in Judge Weinfeld's opinion, 272 F.Supp. 679, are as follows. On March 25, 1963 at about 10:00 A.M., the patient, Paul Hefko, who had a history of mental illness and violent behavior, applied for treatment at the Veterans Administration Hospital at 24th Street and First Avenue in New York City. He was placed in an observation room awaiting examination until about 1:00 P.M. As he was being escorted to the examination, Hefko assaulted the hospital attendant escorting him and attempted to escape. The examining psychiatrist, Dr. Milton Reisner, observing that Hefko was potentially dangerous, asked for a second experienced attendant to be present at the examination. While being watched by the two attendants, Hefko again became violent and attempted to escape. The two attendants subdued him and held him down while a nurse, on Dr. Reisner's instructions, gave Hefko an injection of 50 milligrams of Thorazine, intended to calm and tranquilize Hefko for a period of three or four hours. This occurred at about 1:30 P.M. and at about 2:00 P.M. Dr. Reisner completed his examination. He diagnosed that Hefko was suffering from a schizophrenic reaction, chronic paranoid type with acute exacerbation, and directed Hefko's immediate transfer to the Veterans Administration Hospital at Northport, Long Island, about 40 miles distant from New York City. Dr. Reisner testified that the administration of Thorazine was not intended to be a restraint during the transfer of Hefko to Northport. However, in his judgment the injection plus the service of one qualified ambulance attendant to accompany Hefko was adequate to assure his transfer without incident.¹

The ambulance, supplied by Hawkes under contract with the Veterans Administration, arrived at the hospital at about 2:45 P.M., with two of Hawkes' employees: Michael LoMauro, the driver, and Jones, who was to serve as the attendant on the trip. Jones, then two months from his eighteenth birthday, had been engaged by Hawkes eleven days previously as an apprentice oxygen technician. He was without training, education or experience as an ambulance attendant or in the handling of potentially assaultive mental patients.

Two hospital employees, Williams and Rogers, whose duties related to the transfer of the patient to the waiting ambulance, observed Jones' youthful appearance and were doubtful whether Jones was sufficiently experienced to handle Hefko, but they failed to call this to the attention of the supervisory or medical personnel. Williams testified that he had warned LoMauro that Jones might not be able to handle Hefko; LoMauro denied that any such warning was given.

Hefko at this time was calm; he walked to and entered the ambulance unaided. He sat in the rear seat facing forward, the door to his right being forward of him. Jones sat directly opposite, facing Hefko; their seats were about three and a half feet apart. LoMauro closed the door from the outside, checked to see that it was securely closed,² and then got into the driver's seat in the front section of the ambulance and started the trip to Northport.

LoMauro testified that the trip was without incident until about 3:45 P.M., when he was proceeding on the Northern State Parkway toward Northport. He then looked in his rear-view mirror and saw Jones standing somewhat stooped over with his back to LoMauro. LoMauro, thinking that something was wrong, called to Jones and simultaneously started to pull over to the right side of the road, hitting his brakes. At that instant, Jones somehow fell or was thrown from the ambulance. LoMauro testified that a split second after he first observed Jones standing hunched over, he saw that Jones was no longer in the ambulance and immediately realized that Jones had fallen out of the door. LoMauro did not see what happened in that split second; he did not actually see Jones fall out or how this occurred. He explained that his subsequent statements that Hefko had thrown Jones from the ambulance were merely "guesses" as to the cause of the accident. Judge Weinfeld specifically found LoMauro's testimony to be truthful.

When the ambulance came to a halt, LoMauro ran back to where Jones was lying on the roadway severely injured and pulled Jones to the side of the road. When LoMauro returned to the ambulance, Hefko was sitting quietly on his seat. After the police arrived at the scene of the accident, they handcuffed Hefko to the stretcher and to a bar in the ambulance. A policeman was assigned to accompany Hefko, and the ambulance proceeded to Northport. On the trip, Hefko lunged several times at the police officer, but was restrained by the handcuffs; he tried to kick the officer and stamp his feet. Soon after his arrival at Northport, Hefko threw a chair at the nurses' aide. He was immediately restrained by being placed in a strait jacket and was given more Thorazine.

Jones was taken to Huntington Hospital, where he died on the following day, as a result of injuries sustained in the accident.

With regard to the defendant's negligence, Judge Weinfeld stated that "The Veterans Administration, with respect to patients in its custody or charge and known to be potentially dangerous, was required to exercise reasonable care to protect them from harming themselves or others." On the question of whether the defendant's agents took adequate and proper safeguards to protect others as well as the patient himself from injury during the course of the journey, Judge Weinfeld found that the injection of 50 milligrams of Thorazine was of sufficient dosage to keep Hefko calm during the trip, and that Hefko's condition did not require the use of physical restraints. However, he found that the administration of Thorazine was not intended to be the sole restraint and that "the defendant was negligent in allowing the trip to be undertaken without a trained, experienced ambulance attendant, and that Jones was not such a trained attendant, of which the defendant was aware."

However, Judge Weinfeld concluded that the plaintiffs, who were required to establish not only the defendant's negligence but...