Skar v. City of Lincoln, Neb.

• Decision Date: 21 May 1979
• Docket Number: No. 78-1048,78-1048
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: William T. SKAR, an Incompetent, by and through his Father and Conservator, Zenon Skar, Appellant, v. The CITY OF LINCOLN, NEBRASKA, a Municipal Corporation, and R. G. Osborne, Appellees.

Page 253

599 F.2d 253

William T. SKAR, an Incompetent, by and through his Father and Conservator, Zenon Skar, Appellant, v. The CITY OF LINCOLN, NEBRASKA, a Municipal Corporation, and R. G. Osborne, Appellees.

No. 78-1048.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1978.

Decided May 21, 1979.

William A. Wieland, of Healey, Healey, Brown, Wieland & Glynn, Lincoln, Neb., for appellant.

Richard D. Sievers, of Marti, Dalton, Bruckner, O'Gara & Keating, Lincoln, Neb., for appellee, City of Lincoln.

Donald E. Endacott, of Knudsen, Berkheimer, Endacott & Beam, Lincoln, Neb., for appellee, Lincoln General Hospital.

Robert T. Grimit, of Baylor, Evnen, Baylor, Curtiss & Grimit, Lincoln, Neb., for appellee, R. G. Osborne.

Before HEANEY, STEPHENSON, Circuit Judges, and HANSON, Senior District Judge. ^*

HANSON, Senior District Judge.

This case presents an appeal from the judgments of the district court ¹ in a tort action arising out of the injuries sustained by William T. Skar when he leaped into a window in the psychiatric ward of Lincoln General Hospital (the hospital) in Lincoln, Nebraska. Skar brought suit against the City of Lincoln in its capacities as operator of the county-city jail, and as operator of the hospital; ² Midwest Physicians Services, Inc. (Midwest), which operated the emergency room at the hospital; and Dr. Robert Osborne, a psychiatrist who cared for Skar at the hospital. The action was brought under the district court's diversity jurisdiction. The claims against the hospital and jail are permitted by the waiver of immunity found in the Nebraska Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 to 23-2420 (Reissue 1977). See Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866, 869 (1977). The substantive law of Nebraska governs.

The claims against the city and Midwest were tried to the court. Dr. Osborne's liability was tried to a jury. The claims against all the defendants were tried in a single trial. At the end of Skar's evidence, the hospital, jail, and Midwest moved for dismissal pursuant to Rule 41(b), F.R.Civ.P. Dr. Osborne moved for a directed verdict. The district court sustained the motions under Rule 41(b) with respect to those claims tried to the court, but overruled the motion for a directed verdict of Dr. Osborne and ultimately submitted his case to the jury. The jury subsequently returned a verdict for Osborne and judgment was entered thereon. Skar appeals from the district court's findings and conclusions as they relate to the liability of the hospital and jail, and from the judgment entered on the jury's verdict in favor of Dr. Osborne. No appeal is taken from the district court's dismissal of the claim against Midwest.

We affirm.

I.

The underlying facts are substantially undisputed. At 5:50 a. m. on June 3, 1975 Skar was found sleeping and intoxicated in his car on Interstate 80 west of Lincoln, Nebraska by a trooper of the Nebraska State Patrol. The only indication in Skar's possession of an address was 6051/2 Main, Longmont, Colorado which was, in fact, his correct address. Skar was arrested for public intoxication and about an hour later arrived at the county-city jail in Lincoln where he was placed in a holding room, and later in a small single person cell for intoxicated persons. During the 31 hours Skar spent in the jail his behavior became increasingly unusual. Also during this time he was frequently checked by medical personnel at the jail.

At first Skar was simply uncommunicative. Later, however, at 1:00 p. m. on June 3 the jailer observed Skar banging his head on the cell wall. Early that evening, Skar defecated in various locations on the cell floor, removed his clothes and neatly laid them out on the floor. At 10:30 p. m. he fell when his jailers attempted to fingerprint and photograph him, though he was believed not to then be intoxicated.

At 2:00 a. m. in the morning of June 4 Skar sought to make a telephone call but when permitted to do so simply mouthed words into the receiver without speaking. A jail nurse made a notation in the medical record after the 2:00 a. m. incident that Skar could be "acting out," or might be "mental." Later, at approximately 8:00 a. m., Skar was observed staring blankly into space with tears in his eyes. He remained uncommunicative, mumbling incoherently and "doing yoga." At 9:30 a. m. Skar pounded on his cell door and again took off all of his clothing.

By 10:00 a. m. the jail nurse decided to and did contact a doctor who regularly made calls at the jail. The doctor prescribed medication and directed steps to gain Skar's admittance to the Lincoln Regional Center, a state mental hospital. The nurse thereupon signed an affidavit asserting her belief that Skar was mentally ill and initiating a process leading to a hearing before a board of mental health scheduled the following day. The Lincoln Regional Center could not accommodate Skar and at 2:00 p. m. on June 4 he was transported instead to Lincoln General Hospital.

As noted, the emergency room at the hospital was operated by Midwest Physicians Services, Inc. Dr. Harris Graves, an officer of Midwest, examined and took a history from Skar, aided in part by a brief oral summary of Skar's post-arrest behavior provided by the jail. Dr. Graves recorded his findings as follows:

PHYSICAL FINDINGS: Pt. refused to speak here & only cried. After a time became awake & said would like to help anyway he could but that 'love' got him in trouble. He is on his way from Illinois to either Venus or Mars. Healing burn rt. arm. Excoriations of lower legs. Multiple abrasions. Says has smoked pot but on no other drugs.

DIAGNOSIS: Paranoid Schizophrenia.

After initial processing in the emergency room, Skar was admitted to the psychiatric ward on the hospital's third floor and placed in room 321. The room next to 321, room 320, was a security room which could be locked and was barren of such items as drapery cords, electrical outlets, television or telephone items with which a patient could injure himself. Skar's room, however, had these amenities. Both rooms had reinforced windows.

At 4:00 p. m. on June 4 Dr. Osborne examined Skar for the first time. Skar refused to respond initially, but after some 45 minutes began to provide limited information. On Dr. Osborne's inquiry, Skar denied having been hospitalized for mental illness and denied any suicidal inclinations. Skar indicated he was enroute to Colorado but refused to discuss his family or marital status, or to provide sufficient information which would have enabled Dr. Osborne to contact Skar's parents. Skar's parents could have provided important information about Skar's past marital difficulties and associated mental problems. In addition, Skar stated he had been drinking heavily, had diabetes and had received a discharge from the Navy for that reason, and thought he was in Dubuque, Iowa. Most of the factual information provided to Dr. Osborne by Skar was untrue, including his assertion that he had never been hospitalized for mental illness. In 1974 Skar had been hospitalized in Illinois where he was diagnosed as a schizophrenic. Dr. Osborne noted that Skar appeared disoriented and was possibly acting, concluding with the diagnosis: "(1) Drug overdose or alcohol intoxication and withdrawal. (2) ? Possible Psychosis."

Subsequent to Dr. Osborne's examination Skar continued to manifest peculiar though pacific behavior. For the most part, he remained nonresponsive; however, when a nurse accused him of acting, Skar smiled and stated that he was from St. Charles, Illinois before relapsing into silence. This information was entered in the nurses' notes. Shortly thereafter, at 7:30 p. m. on June 4, Dr. Osborne was notified via telephone by a psychiatric ward nurse of the results of chemical tests previously ordered on Skar. He was not told that Skar claimed to be from St. Charles, nor was he brought up to date on Skar's behavior in the ward subsequent to Osborne's examination. In fact, Skar had been raised in St. Charles, his parents resided there and could have been contacted prior to the injury; and St. Charles was closely associated with deep marital and emotional problems in Skar's past. Knowledge of the nature and extent of these problems would have aided in completing an accurate history on Skar, and together with his record of prior hospitalization, would have indicated some possibility of self-destructive behavior.

When contacted at 7:30 p. m., Dr. Osborne ordered a chest x-ray for Skar, and directed that hospital personnel should "(r)estrain or seclude P.R.N." "P.R.N. is jargon for "as necessary."

The nurses' notes reflect that Skar remained awake until 11:00 p. m. During this time he was quiet but remained uncommunicative. At 2:00 a. m. on June 5 Skar awoke, got dressed, and walked toward the elevators on the third floor. He was returned to the ward by a nurse without difficulty. Skar apparently remained awake until approximately 5:30 a. m. During that time he mouthed words without speaking, engaged in other peculiar, non-threatening behavior, cried and said he missed his wife and daughter. ³ At 5:30 Skar went to bed but got up a short time later and went into the lounge. From the vicinity of the nurses' station Skar began to walk toward his room accompanied by nurse Lorraine Stoklasa. Upon nearing his room Skar suddenly broke into a run, nurse Stoklasa pursuing him. Skar turned into his room and, still running, apparently attempted to leap out of the reinforced window. ⁴ He hit the window and fell back to the floor. As a result of the impact, Skar suffered a disabling injury to his spine.

The district court made the required findings and conclusions with respect to the claims against the jail and the hospital. In the case of the former, the district court found that jail nurses were negligent in failing to recognize signs of Skar's mental disturbance within a reasonable time after his...