United States v. Gray

• Decision Date: 06 October 1952
• Docket Number: No. 4445.,4445.
• Citation: 199 F.2d 239
• Parties: UNITED STATES v. GRAY.
• Court: U.S. Court of Appeals — Tenth Circuit

199 F.2d 239 (1952)

UNITED STATES v. GRAY.

No. 4445.

United States Court of Appeals Tenth Circuit.

October 6, 1952.

Clifford C. Chittim, Asst. U. S. Atty., Boulder, Colo. (Charles S. Vigil, U. S. Atty., and Henry E. Lutz, Asst. U. S. Atty., Denver, Colo., on the brief), for appellant.

Elwood M. Haynie, Colorado Springs, Colo., and David H. Morris, Denver, Colo., for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

This is an action instituted under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, to recover damages for personal injuries. After issues were joined and evidence was adduced, the court found among other things that plaintiff was the wife of an enlisted member of the armed forces of the United States; that she was also a veteran, having served in the Women's Army Corps, from which she received a medical discharge in 1944; that on August 1, 1947, she was a patient in an army hospital at Camp Carson, Colorado; that she occupied a room on the second floor of the building in which she was quartered; that she had been and was then suffering from an ailment diagnosed as neurotic, depressive reaction, chronic, severe, manifested by suicidal thoughts and intent; that the defendant was fully aware of her mental condition; that a guard was posted at the door of the room occupied by plaintiff with instructions to watch her constantly; that plaintiff manifested signs of mental derangement by smashing a water glass and attempting to put pieces of the broken glass in her mouth but was prevented from doing so by the guard; that after the incident, she cried at length and acted depressed and agitated; that a window in her room was open for ventilation and no steps were taken to fasten it or make it secure; that by leaving the room without anyone remaining to keep watch of plaintiff, the medical officer in charge of the ward, or the guard, or both of them, failed to give her the constant care and attention necessary for her welfare; that while all members of the personnel were absent from the room, plaintiff jumped or fell from the window of her room to the ground outside; that she sustained injuries which resulted in the complete paralysis of her body from the chest area downward; that she was totally disabled; and that her condition was permanent. Judgment was rendered for plaintiff in the sum of $66,360, representing a base sum of $75,000 less $8,640 which had been paid her. The Government appealed.

The judgment is challenged on the ground that plaintiff did not have any right to enter the army hospital; that the personnel at the hospital were not acting within the scope of their duties as agents or employees of the United States in caring for her welfare or in failing to do so; and that therefore the United States is not liable under the Tort Claims Act. It is said that the hospital was not one for the care and treatment of mental patients; that plaintiff was not entitled to be admitted to it; and that in treating and caring for her, the agents and employees of the United States were not acting within the scope of their duties. Army Regulations No. 40-590 provides among other things that sick wives of enlisted men in the armed forces may be admitted to army hospitals when suitable facilities for hospitalization are available. The hospital in question was not designed specially for the care and treatment of mental patients. And it may be conceded without so deciding that when plaintiff sought admittance for care and treatment, the managerial authorities of the hospital were vested with full power to decline to admit her as a patient on the ground that suitable facilities were not available. But she was admitted, and admitting her amounted to a determination on their part that suitable facilities were available for her. Having decided that there were facilities available and having accepted her as a patient, the personnel at the hospital acted within the scope of their duties or employment in treating and caring for her. And any negligent act or omission on their part in the discharge of such duties which proximately caused injury to plaintiff rendered the Government liable under the Tort Claims Act. Costley v. United States, 5 Cir., 181 F.2d 723.

The judgment is challenged on the further ground that it was wholly discretionary with the authorities at the hospital whether a guard should be placed over plaintiff; that having exercised that discretion by placing the guard at her door, it was equally a matter of discretion whether he should be withdrawn, either temporarily or permanently, even though his withdrawal amounted to a mistake of judgment; and that the Government is not liable even though the medical officer in charge of the ward, or the guard, or both, left the room with no one remaining to keep watch over plaintiff and care for her welfare. The Tort Claims Act provides in presently pertinent part that it shall not apply to any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). While it was within the discretion of the managerial authorities at the hospital to determine in the first instance whether suitable facilities were available for the care and treatment of plaintiff having decided that such facilities were available and having admitted her, the Government was not authorized to exercise in an unbridled manner and without due regard for the known facts and circumstances a plain and clear duty or function in respect to her care and treatment, with complete immunity under the Act from liability for negligence in connection therewith proximately resulting in personal injury to plaintiff. Costley v. United States, supra.

The further attack upon the judgment is that the Government was not an insurer of plaintiff; that all reasonable precautions and those customary in like instances were taken by the attendants at the hospital in caring for plaintiff; and that there was a complete lack of evidence showing negligence as a proximate cause of the accident and resulting injury to plaintiff. Under the Tort Claims Act, the Government is liable in damages for personal injuries caused by the wrongful act or omission of its agents or employees while acting within the scope of their employment under circumstances in which the United States if a private person would be liable to the claimant in accordance with the law of the state wherein the act or omission occurred. In other words, the Act subjects the United States to liability for a tort of that kind in the same manner and to the same extent that a private individual would be liable in like circumstances. United States v. Gaidys, 10 Cir., 194 F.2d 762. It is the general rule that while a hospital conducted for gain is not an insurer of the safety of its patients against personal injuries, whether self inflicted or otherwise, it is required to exercise ordinary care for their welfare and safety against such injuries. No inflexible and unyielding yardstick can be laid down as constituting ordinary care or the lack of it in all cases. In each case, the question must be determined in the light of its own facts and circumstances. In determining what constitutes ordinary care, the condition of the patient should be taken into consideration. And in the case of a mental patient, the care must be reasonably adapted and proportioned to his known suicidal, homicidal, or other like destructive tendencies. Wetzel v. Omaha Maternity & General Hospital Association, 96 Neb. 636, 148 N.W. 582; Torrey v. Riverside Sanitarium, 163 Wis. 71, 157 N.W. 552; Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162; Hawthorne v....