The opinion of the court was delivered by: MOTLEY
Findings of Fact and Conclusions of Law
This action was brought by plaintiff, individually and as executrix of the estate of her deceased husband, Raymond P. Cotter, to recover from defendant, United States of America, damages for the wrongful death of decedent.
The gravamen of the complaint is that Mr. Cotter died in the Veterans Administration Hospital, Montrose, New York, as the result of: 1) an assault and beating, with unreasonable force, upon him by Elmore Darnell Robinson, an employee of the hospital, and other employees, on January 2 or 3, 1963; 2) the hospital's careless and negligent failure and omission to observe the condition of decedent after said assault and beating and to take the proper precautions and to apply the proper remedies so as to prevent unfavorable results; and 3) the hospital's careless and negligent failure and omission to exercise and take proper care and precaution during treatment of decedent, who had been admitted to the hospital for treatment.
The answer denied the essential allegations of the complaint. Defendant, in a first separate defense, claimed that the complaint failed to state a claim against defendant upon which relief can be granted. In a second separate defense, defendant alleged that any injuries sustained by decedent were caused solely by reason of his own acts and negligence and were not caused or contributed to by defendant.
In a pretrial order, dated March 14, 1966, the parties agreed that the pleadings would be deemed amended in accordance with the framing of the issues therein by the court and that the trial of this case would be based upon said order.
The issues for trial, as framed by that order, were as follows:
1) Was the defendant negligent as contended in paragraph 3(b) herein?
2) If the defendant was negligent as claimed, did plaintiff's intestate sustain any injuries as a proximate result of such negligence?
3) What is the pecuniary value of plaintiff's damages?
4) Was plaintiff's intestate contributorily negligent?
In paragraph 3(b)(1) of the order referred to in issue number (1), plaintiff contended the following:
a. Unreasonable force was used to restrain decedent, causing injuries resulting in his death; b. Decedent suffered cuts, bruises, broken ribs, scratches, swelling, shock, fever and lung congestion; c. Res ipsa is relied on to the extent that there is no other explanation of the injuries; d. ...