Stake v. Woman's Division of Christian Service of Bd. of Missions

• Decision Date: 23 December 1963
• Docket Number: No. 7312,7312
• Citation: 387 P.2d 871,73 N.M. 303,1963 NMSC 221
• Parties: Peggy M. N. STAKE, Plaintiff-Appellant, v. WOMAN'S DIVISION OF CHRISTIAN SERVICE OF the BOARD OF MISSIONS and Church Extension of the Methodist Church, Inc., of New York, d/b/a Bataan Memorial Methodist Hospital, Lovelace Foundation for Medical Education and Research, d/b/a Lovelace Clinic, and Robert P. Secrest, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 871

387 P.2d 871

73 N.M. 303

Peggy M. N. STAKE, Plaintiff-Appellant, v. WOMAN'S DIVISION OF CHRISTIAN SERVICE OF the BOARD OF

MISSIONS and Church Extension of the Methodist Church, Inc.,

of New York, d/b/a Bataan Memorial Methodist Hospital,

Lovelace Foundation for Medical Education and Research,

d/b/a Lovelace Clinic, and Robert P. Secrest,

Defendants-Appellees.

No. 7312.

Supreme Court of New Mexico.

Dec. 23, 1963.

Dolan, Clear & Jones, Warren F. Reynolds, Albuquerque, for appellant.

Iden & Johnson, James T. Paulantis, Albuquerque, for appellee Bataan Memorial Methodist Hospital.

Keleher & McLeod, Russell Moore, Michael Keleher, Albuquerque, for appellees Lovelace Clinic and Robert P. Secrest.

COMPTON, Chief Justice.

This is an appeal by the plaintiff, a private-duty nurse, from a judgment in favor of the defendants, Bataan Memorial Hospital, Lovelace Clinic, and Dr. Robert P. Secrest, all of Albuquerque, in an action brought to recover damages for personal injuries suffered as the result of an assault on her by a patient. The trial court, after considering the verified pleadings consisting of the complaint, the answer containing a general denial, appellant's deposition, and her affidavit in opposition to motion to dismiss, granted summary judgment from which this appeal is taken. The plaintiff will be referred to as the appellant and the defendants will be referred to individually as Bataan, Lovelace, and Dr. Secrest, or jointly as the appellees.

The negligence alleged as the proximate cause of appellant's injuries is the breach by appellees of their duty to warn her of the dangerous propensities of the patient, of which they had knowledge. Specifically, the negligence of Bataan is alleged to have risen out of the breach of its affirmative duty to appellant as a business invitee; the negligence of Dr. Secrest, in addition to acting for and on behalf of Bataan, is based on breach of duty, arising by reason of his professional relations to exercise ordinary care to protect others from injury; and the negligence of Lovelace, by whom Dr. Secrest was employed, is predicated on agency.

The following facts appear from the pleadings, the deposition and affidavit. On January 7, 1962, on order of Dr. Secrest, Bataan called the Professional Nurses' Registry of Albuquerque and requested a special nurse for an 85-year-old male patient whose condition had been diagnosed as a possible stroke. Appellant's card at the Registry indicated she was not available for cases where there was a contageous disease or psychotic condition. The Registry called appellant and gave her the information it had. She accepted the call and reported to the patient's room at Bataan at 2:40 p. m., 20 minutes before she was to go on duty. Appellant and the private nurse then on duty reviewed the patient's chart and his condition, which revealed he had been given a tranquilizer at 1:30 p. m. but was extremely restless, moving his arms and legs constantly, reaching for imaginary objects, pulling on electrical cords he could reach, shaking the side rails of the bed, and trying to get out of bed. The patient became increasingly restless and irrational as a result of which appellant, being unable to reach Dr. Secrest, summoned assistance and ordered leather restraints for the patient to prevent him from injuring either himself or her. It was while applying the restraints to the resisting patient that he assaulted the appellant, resulting in the injuries for which she brought this action. When the patient was first admitted to Bataan, Dr. Secrest was informed by the daughter of the patient that he had previously been committed to institutions on several occasions, and that he was frightened of hospitals, doctors, nurses, or of anyone dressed all in white. Actually, the patient was subsequently diagnosed as having complete brain stem damage, and Dr. Secrest advised the daughter to have him committed to a sanatorium as there was nothing to be done for him at the hospital.

Appellant contends that the evidence raised genuine issues of material fact as to the appellees' knowledge of the patient's danegerous propensities, from which it could have been found that the duty to warn existed and that duty had been breached. Consequently, the evidence with all reasonable inferences flowing therefrom must be viewed in its most favorable aspect, in support of the appellant's position, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving parties. Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378; Ginn v. MacAluso, 62 N.M. 375, 310 P.2d 1034; Srader v. Pecos Construction Company Inc., 71 N.M. 320, 378 P.2d 364; Coca v. Arceo, 71 N.M. 186, 376 P.2d 970; Sooner Pipe & Supply Corp. v. Doerrie, 69 N.M. 78, 364 P.2d...