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Bezark v. Kostner Manor

FEBRUARY 15, 1961.




Appeal from the Circuit Court of Cook county; the Hon. JOHN KARNS, Judge, presiding. Reversed and remanded.


This is a personal injury action against Kostner Manor, Inc., a nursing home for aged people, by Louis Bezark, one of its patients. It is based upon the alleged negligence of the home in failing to exercise ordinary care to protect him from assault and injury by a fellow patient. A jury trial resulted in an $18,500 verdict for plaintiff. Post-trial motions of defendant were overruled. Judgment was entered on the verdict, and defendant appeals.

On May 29, 1958, plaintiff Bezark, then 73 years old, was a paying guest at the nursing home, which occupied a 3-story building and accommodated 119 patients, of whom 30 were confined to bed. The patients were free to move about the premises as they wished and Bezark, while on his way to the reception room to watch a television program, was injured in a hallway. He required surgery and now spends most of his time in bed or in a wheel chair. Bezark claims he fell when struck by Hyman Merkins, an intoxicated patient.

Bezark testified that as he entered a back door of the home, Merkins blocked his passage. Merkins was drunk, noisy and abusive, with the smell of intoxicating beverage on his breath. Merkins finally stepped aside and after an exchange of remarks, Merkins struck Bezark, who fell and fractured his right femur.

Rosemary Scott, defendant's receptionist, and John Griffiths, its manager, both located on the first floor, heard loud voices in the hallway but could not identify the voices and did not see the occurrence. Phillip Marcoff, a wheel chair patient, heard the argument through a closed door and was able to identify the voices of Bezark and Merkins. Merkins denied hitting Bezark, said he was in his room and heard Bezark "calling dirty names." He opened his door, looked out, saw Bezark lying on the floor, but did not go near him and stayed in his room.

There is testimony that prior to the occurrence Merkins was drunk four or five times a month and, when drunk, was argumentative and wanted to fight. Defendant's records show that Merkins was found intoxicated on the premises 27 times between January 7, 1957, and November 27, 1957. Marie Boehm, a nurse, testified that when she observed Merkins was intoxicated, she would tell Dr. Leonard Tilkin, the president and medical director. When Merkins was intoxicated, he was stubborn and argued with the patients, and that sometimes they would put him to bed and strip him. Griffiths, the manager, cautioned Merkins to conduct himself properly, control his personal habits and get along with the other patients in the home.

We have considered the many contentions of defendant but have decided to limit our opinion to two basic issues: (1) whether plaintiff's evidence established actionable negligence; and (2) whether a new trial should have been granted because of newly discovered evidence.

On the question of negligence of the home in failing to exercise reasonable care to prevent the alleged assault, defendant contends that to impose liability upon it, plaintiff was required to establish that there was danger of assault on plaintiff, of which danger defendant had knowledge and reasonably should have anticipated, and failed to take due care to prevent. We have examined the cases cited and believe a discussion of them is unnecessary, because of our view of defendant's responsibility toward its patients.

The care of aged persons is a matter of increasing public concern to everyone. Many require such constant care, supervision and attention so as to make it difficult or impossible for them to live alone or with their families. Institutions and nursing homes for their care are crowded, understaffed and underfinanced, with long waiting lists. The residents and patients, because of their age or ill-health, are weak, frail, fragile and very susceptible to injury. Many are confused, weak of mind and irresponsible. Others are irritable, belligerent and combative and are quite capable of harm to their fellow patients.

Nursing homes and similar institutions for the aged cannot be held to be insurers of the safety of their patients. They owe their patients ordinary care to protect them from any danger or injury which might be reasonably anticipated. As to dangers reasonably to be anticipated from acts of other persons under the hospitals' control, reasonable care and attention must be exercised for the safety and well-being of their patients, in proportion to the circumstances and their ability to look after their own safety. (Sylvester v. Northwestern Hospital of Minneapolis (1952) 236 Minn. 384, 53 N.W.2d 17; Tabor v. State (1946) 62 N.Y.S.2d 380, 382; Restatement of Torts, § 320.) Where there is greater danger and hazard, there must be a corresponding exercise of attention for the purpose of preventing injury to another, to exercise what the law terms "ordinary care." Commonwealth Electric Co. v. Melville (1904), 210 Ill. 70, 78, 70 N.E. 1052.

Defendant contends there is no evidence of its actual knowledge of Merkins' intoxication on the day of the assault, and no prior evidence that Merkins had any dangerous propensities, intoxicated or otherwise. They argue that an element of liability is absent — notice of the danger of assault, or facts to show that it should have reasonably anticipated the danger, and failed to use due care to guard plaintiff against the assault. Meyer v. Riverview Park Co. (1950) 342 Ill. App. 218, 96 N.E.2d 379; Worcester v. Theatrical Enterprises Corp. (1938) 28 Cal.App.2d 116, 82 P.2d 68.

Although defendant had no knowledge of Merkins' intoxication on the day of the assault, the record clearly shows that defendant was on notice that Merkins was frequently intoxicated, argumentative and required discipline. As stated in Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 53 N.W.2d 17, authorities recognize that "drunken behavior is unpredictable; also that slight irritations, real or imaginary, may cause outbursts of anger and lead to aggressive acts." We think, considering the frequent intoxication of Merkins, that in the exercise of ordinary care, defendant ought to have reasonably anticipated the likelihood that while in an intoxicated condition he might wander around the home and injure other residents by falling upon them, or by good-natured or ill-natured scuffling. As stated in Kahn v. James Burton Co. (1955) 5 Ill.2d 614, 622, 126 N.E.2d 836:

"All men are presumed to know those things which are matters of common knowledge and must be held, in the absence of actual knowledge or notice, to have reasonably anticipated such occurrences as in the ordinary nature of things reasonable men should know will probably occur."

In the exercise of reasonable care, we believe he should have been segregated if they could not or would not prevent his ...

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