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MCCORMICK v. CITY OF WILDWOOD

November 3, 1977

Francis J. McCORMICK, Plaintiff,
v.
CITY OF WILDWOOD and Cape May County, Defendants



The opinion of the court was delivered by: COHEN

 At trial, the Court submitted the issue of negligence to the jury and, over the plaintiff's objection, also submitted the issue of contributory negligence. No request was made for special interrogatories, nor were any submitted. The jury returned the following general verdict, presently under attack:

 
THE FOREMAN: Hoping that we have understood the Charge of the Court properly, we have determined that in the action concerning Wildwood there is no cause for action.
 
. . .
 
In the action concerning Cape May County, we determined that there is cause for action due to negligence, if that was the way we should interpret the charge. We have determined that the probable cause of blindness is due, perhaps 25 percent to contributory negligence on the part of the plaintiff, and approximately 75 percent to the negligence of Cape May County, in their discharge to Ancora.
 
We suggest an award of approximately $175,000 to Mr. McCormick. We have broken it down, if that is of interest to the Court, in the amount of $120,000 invested for wages, and approximately $50,000 for bills, pain, and suffering, and it is signed by the entire jury. (Tr., 12-11-76, at 63-64) (emphasis added).

 Upon receipt of this verdict, judgment in the amount of $175,000 was entered solely against the defendant, Cape May County.

 Plaintiff filed a Motion for a New Trial urging (1) the irreconcilability of the verdict and (2) the improper submission by the Court to the jury of the issue of contributory negligence.

 The defendant, City of Wildwood, resists the plaintiff's motion urging that the jury's verdict as to it was proper and should not be disturbed. The defendant, Cape May County, seeks a Judgment Notwithstanding the Verdict maintaining that inasmuch as the jury determined that the plaintiff was 25% contributorily negligent, a judgment of No Cause for Action should be entered by the Court in its favor.

 Issue is raised by the plaintiff as to the untimeliness of the filing of Cape May's motion. However, in light of the Court's determination that a new trial must be granted as to both defendants, this issue is inconsequential. A recitation of the pertinent facts is deemed appropriate.

 The plaintiff had been visiting in the City of Wildwood, New Jersey, in November, 1971. On the morning of November 14, 1971, he awoke with what he described as a severe headache and while attempting to find a ride back to his home in Philadelphia, he was taken into custody by an officer of the Wildwood Police Department. The arrest was based on the police officer's observation of the plaintiff's physical condition. The plaintiff told the officer he needed help. Upon arrival at Police Headquarters a charge of being under the influence of drugs was made against the plaintiff. Even though he was examined by a pharmacist on behalf of the City of Wildwood, there was no scientific blood study or any other objective evidence in confirmation of plaintiff's alleged drug usage. Upon conviction in the Wildwood Municipal Court, he was sentenced to serve thirty days in jail, in lieu of a fine. The plaintiff contends that during his four day custody by the City of Wildwood he repeatedly requested medical attention for his headaches and blurred vision which requests went unanswered. On November 17, 1971, he was transferred to the Cape May County jail where he was to complete the remainder of his thirty day sentence. While in Cape May's custody, during a three week period of incarceration, the plaintiff urged that his vision had become progressively worse, his headaches more severe and his repeated requests for medical attention ignored. Finally, on December 1, 1971, Dr. Kulick, a physician engaged by Cape May, examined the plaintiff and found severe loss of vision bilaterally (dating back three weeks) and weakness in the left arm (Tr., 11-30-76, at 54-55). He recorded a history of severe intermittent headaches for a period of 18 months, and constant headaches for three weeks (id. at 54). A diagnosis of brain tumor was made and, for reasons unclear to this Court, Dr. Kulick ordered plaintiff's involuntary commitment to Ancora Psychiatric Hospital, a mental institution without neurosurgical operative facilities (id. at 37). There, a definitive diagnosis of a readily apparent brain tumor was made. Dr. Lee, Assistant Attending Medical Director, testified that the damage had already occurred. On the following day, December 2, 1971, prior to the completion of his sentence, the plaintiff was discharged from custody, essentially blind.

 The findings of papilledema, restriction of visual field, and left arm weakness suggested an increase in intercranial pressure.

 It is undisputed that the plaintiff had developed a brain tumor prior to and during his period of incarceration in both City and County jails. Equally undisputed is that the plaintiff's total and permanent blindness is a result of the tumor and that early diagnosis of the same is mandatory to prevent serious brain damage or blindness. All the medical experts agreed that this type of tumor, although progressive in character, may in the early stages of its growth leave the patient without any symptoms. Further, that the brain can withstand a certain amount of compression from a tumor's growth without indication of neurological signs. However, at a certain point, the slightest increase in pressure will cause enormous changes, which in this case resulted in plaintiff's blindness.

 Plaintiff urges that this critical period was reached during his incarceration in both defendants' jails; that he constantly complained, but received no appropriate medical care at all; and if he had received the required treatment, there would have been complete recovery of vision (Tr., 12-1-76, at 36). However, because of the failure to render treatment, the damage became irreversible between November 14 and December 1, 1971 (id. at 58). Contrariwise, defendants assert that there was an absence of any symptoms during the period of plaintiff's imprisonment and, therefore, he did not complain and, as a ...


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