{ "id": 2832658, "name": "Lewis KELLY and Genevieve Kelly, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF HILLCREST GENERAL HOSPITAL, INC., Defendant and Third-Party Plaintiff-Appellee, and Margaret Hunt, Third-Party Defendant", "name_abbreviation": "Kelly v. Board of Trustees of Hillcrest General Hospital, Inc.", "decision_date": "1974-11-27", "docket_number": "No. 1470", "first_page": "112", "last_page": "113", "citations": [ { "type": "official", "cite": "87 N.M. 112" }, { "type": "parallel", "cite": "529 P.2d 1233" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "73 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320253 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0303-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "792-793" }, { "page": "679-680" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0789-01" ] } ], "analysis": { "cardinality": 274, "char_count": 3479, "ocr_confidence": 0.781, "pagerank": { "raw": 2.772958414958151e-07, "percentile": 0.834493246517461 }, "sha256": "b81dadbc9fd4c7ed4e09ea9ba81c582c499056e5c22b9a069f52020b8edda60b", "simhash": "1:9d9ec107d5c0f3f3", "word_count": 558 }, "last_updated": "2023-07-14T21:55:50.541053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and HENDLEY, J., concur." ], "parties": [ "Lewis KELLY and Genevieve Kelly, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF HILLCREST GENERAL HOSPITAL, INC., Defendant and Third-Party Plaintiff-Appellee, and Margaret Hunt, Third-Party Defendant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nSummary judgment was granted defendant in an action by plaintiffs for damages caused by the negligence of defendant\u2019s agents and employees. Plaintiffs appeal. We reverse.\nFacts\nPlaintiff Genevieve Kelly was admitted to the hospital on January 29, 1970, by Dr. Foster. She had symptoms of having the \u201cflu\u201d. Margaret Hunt, the third party defendant, was admitted to the same hospital on February 4, 1970, at approximately 4:30 p. m. and placed in the bed next to Genevieve. Because of her previous knowledge of Margaret, Genevieve on several occasions requested the nurses and her doctor to find her another room. She was told there was no other room. Genevieve\u2019s daughter-in-law was not allowed to stay with her. While Genevieve was asleep the night of February 4, 1970, Margaret got on top of Genevieve, placing her hands around Genevieve\u2019s throat. After a violent struggle, Genevieve rang the buzzer for help. Four nurses came to her aid.\nThere is a hiatus in the nurses\u2019 notes for the care of Genevieve. The notes show that from about 8:15 p. m. to 11:00 p. m. on February 4, 1970, Margaret was \u201cvery confused and talking incoherently\u201d, refused to swallow her medication, was spitting it out, \u201cblows bubbles in glass and will not swallow water, keeps mumbling.\u201d She finally got \u201cout of bed and went into the hall. Pulled I.V. out. Back to bed, perspiring.\u201d\nA. Defendant failed to establish a prima facie showing.\nOn motion for summary judgment, no burden rests on plaintiffs until defendant has made a prima facie showing that there was no genuine issue of fact as to plaintiffs\u2019 claim of protection from assault and battery. \u201cBy a prima facie showing is meant such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.\u201d Goodman v. Brock, 83 N.M. 789, 792-793, 498 P.2d 676, 679-680 (1972).\nTo make a prima facie showing, the defendant must establish that it did not have actual knowledge (knew or should have known) that Margaret\u2019s condition was such that an assault and battery might be expected to follow. Stake v. Woman\u2019s Division of Christian Service, 73 N.M. 303, 387 P.2d 871 (1963). Defendant failed in this regard.\nMargaret\u2019s nurses notes show that she was acting strangely and was confused. Nothing in the record indicates whether this behavior should have alerted the hospital to Margaret\u2019s dangerous propensities. No affidavit or other evidence was offered by the defendant in this regard. The hospital administrator\u2019s affidavit, stating only that the hospital had no information of prior threats of injuries caused by Margaret, is insufficient in this regard. Summary judgment should not have been granted.\nIn the trial of this case, the - burden of proof will be on plaintiffs to establish, by a preponderance of the evidence, that the defendant had actual knowledge of Margaret\u2019s dangerous propensities.\nReversed.\nIt is so ordered.\nWOOD, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "William E. Snead, Ortega, Snead, Dixon & Hanna, Albuquerque, for plaintiffs-appellants.", "Arthur O. Beach, Ranne B. Miller, Keleher & McLeod, Albuquerque, for defendant and third-party plaintiff-appellee." ], "corrections": "", "head_matter": "529 P.2d 1233\nLewis KELLY and Genevieve Kelly, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF HILLCREST GENERAL HOSPITAL, INC., Defendant and Third-Party Plaintiff-Appellee, and Margaret Hunt, Third-Party Defendant.\nNo. 1470.\nCourt of Appeals of New Mexico.\nNov. 27, 1974.\nCertiorari Denied Dec. 30, 1974.\nWilliam E. Snead, Ortega, Snead, Dixon & Hanna, Albuquerque, for plaintiffs-appellants.\nArthur O. Beach, Ranne B. Miller, Keleher & McLeod, Albuquerque, for defendant and third-party plaintiff-appellee." }, "file_name": "0112-01", "first_page_order": 138, "last_page_order": 139 }