SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
January 13, 1969
ANGELINA CONTE, RESPONDENT,
HOSPITAL FOR JOINT DISEASES, APPELLANT
Beldock, P. J., Christ, Rabin, Hopkins and Benjamin, JJ., concur.
Plaintiff, a paying patient at the defendant hospital, has been awarded damages for injuries allegedly incurred when a hospital employee committed an intentional tort against her. Liability of a private hospital to a patient for intentional torts is not absolute. Instead, the hospital has the duty to exercise reasonable care and diligence in safeguarding a patient from harm occasioned by employees or third persons, measured by the capacity of the patient to provide for her own safety (see Robertson v. Towns Hosp., 178 App. Div. 285; Stone v. Eisen Co., 219 N. Y. 205, 209; Van Patter v. Towns Hosp., 246 N. Y. 646; Hendrickson v. Hodkin, 276 N. Y. 252; Hogan v. Hospital Co., 63 W. Va. 84). In our opinion, the record supports a determination that the hospital was negligent, through the acts of its employees, in sending plaintiff, a non-ambulatory patient, to one of its departments after hours for the department, under suspicious circumstances, and in failing, when notified that something was seriously amiss, to take any action. The record would also support a conclusion that the circumstances made a threat to plaintiff's person apparent to defendant's servants, whose negligent acts facilitated the assault. Hence, we need not determine whether a hospital would be liable for the intentional torts of its employee if it is found that he had acted outside the scope of his employment (see McKee v. Sheraton-Russell, 268 F. 2d 669), inasmuch as, under the facts herein, had the attacker been a stranger, the hospital's responsibility for the dereliction of its duty to safeguard plaintiff would have been the same. We have examined all of appellant's contentions and find them to have no merit.
Judgment of the Supreme Court, Queens County, entered April 28, 1967 upon a jury verdict, affirmed, with costs.
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