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Ahn v. Kim

July 18, 1996

KEJOO AHN, INDIVIDUALLY, AND HO AHN, BY HIS GUARDIAN, KEJOO AHN, AND KEJOO AHN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF HO AHN, DECEASED, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
DR. CHUNG KIM, STANLEY BIRCH, ELLSWORTH RAND, "JOHN DOE" AND "JANE ROE", (FICTITIOUS NAMES), DEFENDANTS, AND THE CARRIER FOUNDATION AND THE CARRIER CLINIC MEDICAL ASSOCIATION, DEFENDANTS-RESPONDENTS, AND DR. BOHDAN CEHELYK, FELICIA SCHILP, R.N., MARY MANUELL, R.N., IRWIN KELLY AND BARBARA HIGGINS, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 281 N.J. Super. 511 (1995).

The opinion of the Court was delivered by Pollock, J. Justices Handler, O'hern, Garibaldi, Stein and Coleman join in Justice Pollock's opinion. Chief Justice Wilentz did not participate.

The opinion of the court was delivered by: Pollock

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

KEJOO AHN, ETC., ET AL. V. DR. CHUNG KIM, ET AL. (A-98/99/100/101-95)

Argued February 27, 1996 -- Decided July 18, 1996

POLLOCK, J., writing for a unanimous Court.

This appeal concerns the liability of a private psychiatric hospital and members of its staff for the disappearance of a patient from an open ward. Kejoo Ahn (Mrs. Ahn) instituted this action individually, as guardian of her husband, Dr. Ho Ahn, and as executrix of his estate. Defendants include the Carrier Foundation, which operates the Carrier Clinic; Dr. Bohdan Cehelyk, the admitting physician; nurses Felicia Schilp and Mary Manuell; security officers Barbara Higgins and Ellsworth Rand; and Irwin Kelly, director of security.

Dr. Ahn was admitted voluntarily to the Carrier Clinic on March 22, 1988 for severe depression. On arrival at Carrier Clinic, Dr. and Mrs. Ahn signed the admittance forms and met with Dr. Cehelyk. Believing that Dr. Ahn had suicidal ideations, but was not suicidal, Dr. Cehelyk did not assign Dr. Ahn to a closed unit where his movements would have been restricted. Instead, Dr. Cehelyk assigned Dr. Ahn to an open unit where patients had more freedom to move about. Dr. Ahn disappeared from the Clinic within six hours of his admission. Since then, no one has seen or heard from him.

On August 26, 1988, Mrs. Ahn was appointed guardian over the person and property of Dr. Ahn. One year after his disappearance, on March 22, 1989, Mrs. Ahn filed the present action, seeking recovery for Dr. Ahn's pain and suffering and for her own emotional distress. In a separate proceeding in March 1993, the Law Division, pursuant to N.J.S.A. 3B:27-6, declared Dr. Ahn legally dead as of March 23, 1993, five years after his disappearance. Mrs. Ahn was then appointed executrix of Dr. Ahn's estate. Thereafter, Mrs. Ahn amended her complaint to include a cause of action for the wrongful death of Dr. Ahn. Mrs. Ahn's motion to add nurse Caroline Barter as a defendant was denied.

At the close of Mrs. Ahn's case, the court granted directed verdicts for Kelly and Rand. Before submission of the case to the jury, the court dismissed the emotional-distress claim. Over the objection of Mrs. Ahn's counsel, the court instructed the jury not to presume that Dr. Ahn committed suicide. The court explained that Mrs. Ahn bore the burden of proving by a preponderance of evidence that Dr. Ahn had committed suicide. The court also charged the jury that a court order had been entered declaring Dr. Ahn dead.

The jury found that Dr. Cehelyk, nurse Schilp and Higgins had not been negligent; that Manuell had been negligent in that she deviated from accepted nursing standards in connection with Dr. Ahn; that Carrier Clinic had been negligent in that members of its nursing staff deviated from accepted nursing standards and in its security staffing on March 22, 1988; and that Mrs. Ahn failed to prove that Dr. Ahn committed suicide within a short space of time after his disappearance from the Carrier Clinic. Because the jury concluded that defendants' negligence had not caused Dr. Ahn's death, the trial court entered judgment for defendants.

On appeal, the Appellate Division reversed, finding reversible error in the charge concerning the presumption against suicide and in limiting Mrs. Ahn to a theory of intentional, active suicide. The Appellate Division precluded Mrs. Ahn from referring at trial to the previously-entered declaration of Dr. Ahn's death, reasoning that the order pertained to "winding up his affairs," and did not establish anything factually relevant to the wrongful death action. The court further stated that as with the presumption against suicide, counsel should not refer at trial to the statutory presumption of death. On the other issues, the Appellate Division affirmed the dismissal of Mrs. Ahn's claim for emotional distress, permitted her to add Barter as a defendant to the wrongful death action; and reversed the judgment in favor of Kelly. Thus, the court ordered a retrial on both the wrongful death and survival actions as to Carrier Foundation, Dr. Cehelyk, Manuell, Schilp, Higgins and Kelly.

The Supreme Court granted Mrs. Ahn's petition for certification to review the judgment dismissing her emotional-distress claim and restricting the use of the declaration of Dr. Ahn's death. The Court also granted defendants' cross-petitions seeking review of the scope of the remand.

HELD:

The issues of negligence and causation are so interrelated that both issues must be retried, except as to Dr. Cehelyk. In addition, Mrs. Ahn's claim for emotional distress was properly dismissed by the trial court. On retrial, Mrs. Ahn is entitled to rely on the statutory presumption of death or refer to the court order declaring Dr. Ahn's death to prove any element of her cause of action, including Dr. Ahn's death.

1. Issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues. Whether issues are sufficiently separable to warrant a partial retrial ultimately depends on the circumstances of each case. Here, the issues of negligence and causation are so interrelated that both issues must be retried. The risk that Dr. Ahn would commit suicide interrelates with the alleged negligence of the various defendants. However, because Mrs. Ahn no longer wishes to pursue the claim against Dr. Cehelyk, judgment dismissing the matter against him is reinstated. (pp. 14-15)

2. Mrs. Ahn's claim for negligent infliction of emotional distress does not satisfy the requirements for recognized causes of action, specifically those involving bystanders to accidents; actions for medical malpractice committed in the presence of the plaintiff; or cases involving loss of a corpse. Mrs. Ahn cannot sustain a claim for indirect infliction of emotional distress because she did not witness either the alleged negligence of the Carrier Clinic staff or the death or disappearance of her husband. The shock of receiving a call informing her that her husband was missing also does not support a cause of action. Moreover, defendants did not owe a direct duty to Mrs. Ahn. Carrier Foundation did not assume the risk that any tortious conduct toward Dr. Ahn would result in liability for emotional distress to Mrs. Ahn. (pp. 16-19)

3. The Court disagrees with the Appellate Division holding in respect of the statutory presumption of death. A presumption requires the fact-finder, once it finds the existence of one fact, to the presume the existence of another fact. If the opposing party introduces evidence tending to disprove the presumed fact, the presumption is lost. The party seeking the benefit of the presumption bears the burden of proof, which then shifts to the opposing party the burden of production. A plaintiff such as Mrs. Ahn, who bears the burden of proving the death of her husband, on introducing into evidence a declaration of her husband's death, would be entitled to a presumption that he is in fact dead. The burden of production would then shift to defendants to introduce evidence rebutting that presumption. Notwithstanding that shift in the burden of production, the ultimate burden of proving Dr. Ahn's death would remain on Mrs. Ahn. (pp. 19-21)

4. Reliance by third parties on declarations of death in such matters of remarriage, the administration of decedent's estates and payment of life insurance suggests that reliance on the statutory presumption is appropriate in a wrongful death action. Common sense, fundamental fairness and the need to bring stability to human affairs also support that Conclusion. Although the declaration of the death by itself suffices to create the presumption of Dr. Ahn's death, Mrs. Ahn may introduce other evidence to support that presumption. If defendants introduce sufficient evidence to rebut the presumption, the jury may consider the declaration of death and the underlying evidence in determining whether Mrs. Ahn has met her burden of proof. If, however, defendants fail to introduce sufficient evidence to rebut the presumption, the court should instruct the jury that, if it accepts the order declaring Dr. Ahn's death, then it must also find that he is in fact dead. The evidence defendants introduced at trial was insufficient to rebut the statutory presumption. Unless defendants can adduce additional evidence on retrial to disprove Dr. Ahn's death, Mrs. Ahn is entitled to the presumption that Dr. Ahn is in fact dead. (pp. 21-23)

Judgment of the Appellate Division is AFFIRMED to the extent that it dismisses Mrs. Ahn's emotional-distress claim and remands the wrongful death and survival actions for retrial. The judgment is MODIFIED by dismissing the complaint against Dr. Cehelyk and by according Mrs. Ahn the benefit of the presumption of death.

JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE POLLOCK'S opinion. CHIEF JUSTICE WILENTZ did not participate.

The opinion of the Court was delivered by

POLLOCK, J.

This appeal concerns the liability of a private psychiatric hospital and members of its staff for the disappearance of a patient from an open ward. Plaintiff Kejoo Ahn (Mrs. Ahn), instituted this action individually, as guardian of her husband, Dr. Ho Ahn, and as executrix of his estate. Defendants include the Carrier Foundation, which operates the Carrier Clinic, and numerous individual defendants: Dr. Bohdan Cehelyk; nurses Felicia Schilp and Mary Manuell; security officer Barbara Higgins; and director of security Irwin Kelly. Mrs. Ahn seeks recovery for Dr. Ahn's pain and suffering, his wrongful death, and for her own emotional distress. Two separate proceedings preceded the present ...


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