Opinion
February 22, 1971
In this negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered January 26, 1970, in favor of defendant upon the trial court's dismissal of plaintiffs' complaint at the close of plaintiffs' case in a jury trial. Judgment reversed, on the law, and a new trial granted, with costs to abide the event. The questions of fact have not been considered. Plaintiff Ellen Butler sustained a fractured hip as a result of stepping into a street hole on April 17, 1963. She was admitted to defendant's hospital on that day and underwent surgery there for the hip injury. On May 14, 1963, while she was convalescing in the hospital from the surgery and treatment for that injury, her physician concluded that she might undertake to walk with the aid of crutches. A registered nurse employed by defendant was assigned to instruct and aid her in that connection. While thus attempting to walk after a brief period of crutch instruction, she fell in the corridor of the hospital, sustaining a comminuted fracture of her left wrist, requiring surgery and an extended stay at the hospital. Plaintiffs claim that (1) this accident was the proximate result of the negligence of defendant's nurse in failing properly to supervise Mrs. Butler's walking with the crutches on the first day she was introduced to their use and in failing to take proper and customary precautions to prevent her falling when thus walking after extended orthopedic hospitalization; and (2) defendant is liable in damages on the theory of respondeat superior. In our opinion, giving plaintiffs the benefit of all reasonable inferences that might be drawn from the evidence adduced, we find that plaintiffs prima facie established negligence on defendant's part. Plaintiffs also sued the City of New York for its negligence resulting in the accident of April 17, 1963 which required Mrs. Butler to go to defendant hospital for surgery and treatment of her fractured hip. In her bill of particulars in that action, she also claimed damages for the wrist fracture which she had suffered on May 14, 1963 as a result of the present defendant's negligence and that this wrist injury also could be deemed a proximate result of the city's negligence. This claim was properly asserted under the rule that a tort-feasor may be held liable for all damages that proximately might be deemed to have resulted from his negligence, including subsequent injuries suffered while being treated by a physician or hospital for the original injury ( Derby v. Prewitt, 12 N.Y.2d 100; Armieri v. St. Joseph's Hosp., 159 Misc. 563). Plaintiffs settled their claim against the city for $20,000. In their release to the city they expressly reserved their right to continue with their claim against the present defendant for its negligence. In our opinion, this release did not bar plaintiffs' proceeding against the present defendant to recover damages for its liability ( Derby v. Prewitt, 12 N.Y.2d 100, supra; Rask v. County of Nassau, 24 A.D.2d 580; Lurie v. Goldman, 53 Misc.2d 250, 252; Armieri v. St. Joseph's Hosp., 159 Misc. 563, supra; 27 Albany L. Rev. 231-238). Whether the $20,000 settlement received from the city should constitute complete or partial satisfaction of all damages sustained by plaintiffs resulting from the accident of April 17, 1963, including the further damages they sustained as a result of defendant's negligence while treating Mrs. Butler for her original injury, is a jury question, in our view. If a jury were to find that the $20,000 should be deemed compensation for all of plaintiffs' damages, it should only award plaintiffs nominal damages in this action ( Lurie v. Goldman, 53 Misc.2d 250, 252, supra). (Cf. PJI 2:326, p. 526, pertaining to a charge to a jury as to additional damages, if any, which a jury may award to a plaintiff after he had settled with one tort-feasor, with the reservation of a right to continue against another jointly and severally liable to him for injuries sustained in an accident.) Hopkins, Acting P.J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.