To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library






    14 N.J.Super. 390, 82 A.2d 458 (1951)

    EASTWOOD, J.A.D. This is an appeal from a judgment of dismissal * * * an action for damages for injuries sustained by Alice Clayton arising out of a fall in the defendants’ premises. On October 9, 1948, plaintiff, Alice Clayton, and her husband, entered defendants’ premises as paying patrons for the purpose of roller skating. While skating, Mrs. Clayton fell[. * * * She sustained a fracture of her left arm and was taken to the first aid room of defendants’ premises where one Victor J. Brown, an officer of the defendant corporation, attempted to set Mrs. Clayton’s arm.
    * * * After her fall, Mrs. Clayton was assisted to her feet by her husband and a guard and skated off the main floor, through the observation area in which there was a refreshment stand, to the first aid room. Mr. Brown was summoned and upon arrival proceeded to administer first aid to Mrs. Clayton. He manipulated plaintiff’s fractured arm and applied traction to it and when asked whether or not he was a doctor, Brown replied in the negative, stating that as a prize fight manager he had experience in such matters. A splint was applied to Mrs. Clayton’s arm by Brown, and she was taken to Fitkin Hospital where efforts were made to set her arm with the aid of fluoroscopic and X-ray examination. Efforts to reduce the fracture proving insufficient, bone grafts had to be performed in addition to the use of plates and screws. In the plaintiffs’ complaint they charge the defendants with * * * an assault and battory upon the plaintiff, Alice Clayton; [in that] that (4) the defendant, Victor J. Brown, had no medical experience or capacity to treat the plaintiff for her injuries and although she requested the defendant to cease any further treatment, Brown, acting individually and as an employee of the defendant corporation, maliciously continued to mistreat the plaintiff, Alice Clayton, causing the injuries for which she brought her action[.] * * *
    We are of the opinion that the trial court erred in dismissing the plaintiffs’ action of assault and battery against the defendants as asserted in count three of their complaint. The defendants contend that the acts performed by Brown were an attempt to administer aid to an injured skater, barren of any intent to inflict bodily harm and in an effort to assist recovery by the injured patron. The least manual touching of the body of another against his will constitutes an ‘assault and battery.’ [Cc] ‘The fact that the defendants were actuated by no improper motives in doing as they did, could not be material in a case where only compensative damages were sought to be recovered. That which is, essentially, a trespass, cannot become lawful from being done with good intentions, neither can the manner of doing the thing affect its intrinsic character. If unlawful in its own nature, it must continue to be so, however carefully or skillfully it may be done.’ [Cc] The defendant, Victor J. Brown, concededly was not a medical doctor nor one authorized to administer bodily treatment for one suffering an injury. In the face of the protestations of Mrs. Clayton and her husband, he manipulated and pulled her arm with ‘heavy force’ causing her pain. Although his acts may have been performed with the best of intentions, it is clear that plaintiffs’ proofs raised a jury question as to the unlawfulness of his acts, particularly in view of the fact that he did not obtain the consent of Mrs. Clayton. Consequently, the jury might well have found that Brown’s conduct constituted an assault and battery upon her and would have warranted a verdict against Brown and his employer for the consequential damages occasioned thereby. Such is the settled rule with respect to even those who are skilled in medical science and licensed to practice as such. [Noting authority]. ‘The patient must be the final arbiter as to whether he shall take his chances with the operation or take his chances of living without it. Such is the natural right of the individual which the law recognizes as a legal right. Consent therefore of an individual must be either expressly or impliedly given before a surgeon may have the right to operate.‘‘ [As put by Cardozo, J.], ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. * * * This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained.’’ [Cc]. * * *. The plaintiffs’ case should have been submitted to the jury on the question of the defendants’ liability for the alleged assault and battery. Under the foregoing rules, the plaintiffs’ proofs also raised factual issues for the determination of the jury with respect to the allegations of the second and fourth counts of the complaint.

    At a country club in a socially unevolved state, A, an African American businessman, a guest of a member of the club, approaches the luncheon buffet, plate in hand. A club official approaches him, snatches his plate from his hand, and proclaims in a loud voice: “We don’t serve blacks in here.”
    (a) A has a cause of action in offensive contact battery.
    (b) A has a cause of action in harmful contact battery.
    (c) A has no battery cause of action, as the club official’s contact was with the plate, not with his person.

    A, Doctor, examines B and checks his skin for potential cancers. He notices a wart on the back of B’s neck, and asked B if he would like to have it removed. A explains that the wart is the type that is very susceptible to
    136 Law Masters Series
    developing a skin cancer. B declines. Later A puts B under anesthesia for another procedure. While B is unconscious, A removes the wart. All would agree B has had his risk of skin cancer reduced thereby.
    (a) A is not liable to B because B’s health prospects were improved by the procedure.
    (b) A is not liable to B because a surgeon working with a patient under anesthesia is privileged to perform such other surgery as he thinks best for the patient’s health.
    (c) A is liable to B.

    Create New Group

      Casebriefs is concerned with your security, please complete the following