Flinn v. Crittenden , 287 S.C. 427 ( 1985 )

Littlejohn, Acting Judge:

This action for loss of consortium was commenced pursuant to § 15-75-20 Code of Laws for South Carolina (1976) by H. C. Flinn, plaintiff-appellant-husband, against Wiley M. Crittenden, d/b/a Oakmont of Union, defendant-respondent-nursing home operator.

The husband’s complaint alleges that the nursing home, its agents and employees were negligent, willful and wanton in nine particulars proximately causing him damages. The gist of the allegations of wrongdoing is that the nursing home failed to constantly attend his wife while she was a patient and permitted his step-daughter, who is the patient’s daughter, to remove her from the nursing home and carry her to Mississippi. She is now deceased. The answer of the nursing home is (1) a general denial, (2) assertion that the husband signed a release from liability upon the wife’s admission to the home, (3) that such damages, if any, sustained by the husband were not attributable to the nursing home but to the daughter of the patient and (4) that no cause of action is asserted.

Based on affidavits, pleadings, the deposition of the husband and exhibits, the nursing home moved for a summary judgment which was granted. The husband appeals. We affirm.

The sole contention, found in the one exception of the husband, is that the trial judge erred in finding as a matter of law that no genuine issue of material facts existed and that the nursing home violated no duty owed to the husband. It is argued that there are issues which should be determined by a jury.

This couple was married in 1949. This was the second marriage for the wife. She had, by her previous marriage, five children including Katherine Gill who carried her mother to Mississippi. At the time of the incident involved, the husband was 74 years of age and the wife was 82. Her memory was very poor, and her health was not good.

Prior to her admission to the nursing home, she had been a patient at a hospital in Clinton. During this hospitalization, she was taken from that hospital to Mississippi by this same daughter. Several weeks later, she was returned to Clinton where she remained until April 9, 1982, when she was admitted to the nursing home in Union. At the time of admission, the husband signed an agreement with the nursing home which included the following:

The Oakmont Nursing Center provides only general duty nursing care ... If the guest is in such condition as to need continuous or special duty nursing care, it is agreed that such must be arranged by the guest, or his legal representative or his physicians, and the Nursing Center shall in no way be responsible for failure to provide the same and is hereby released from any and all liability arising from the fact that said guest is not provided’with such additional care.

During the wife’s seven month stay at the nursing home, Katherine had visited her mother fairly regularly. The husband testified that he was aware of this. He also stated in his deposition that he was aware of the fact that the nursing home did not have someone in constant attention with his wife, and he did not expect such.

While the husband testified that he complained about Katherine’s visits once, he admitted that he did not ask anyone to keep her from seeing her mother. Patently, she had a right to visit her mother at the nursing home; and there is no evidence that the mother was forceably removed.

The crucial issue in this case is: Did the nursing home neglect its duty? We are of the opinion that the trial judge properly disposed of this issue when he said in his order:

A somewhat similar situation arose in the case of Murphy v. Allstate Insurance Company, 295 So. (2d) 29, Cert. Den. 299 So. (2d) 787 (La., 1974). In that case a 74-year-old patient at a nursing home wandered from the home and was struck and killed by an automobile. Suit was instituted against the nursing home and driver of the automobile. The plaintiff was the decedent’s widow and in her testimony she admitted that she fully understood that the facilities of the nursing home did not include an attendant or nurse to every patient. The Court in Murphy described the duty of a nursing home as follows:

‘A nursing home is not the insurer of the safety of its patients. The nursing home does have a duty to provide a reasonable standard of care, taking into consideration the patient’s mental and physical condition. This duty owed does not include having a nurse or attendant following the patient around at all times ... (Citing authority)’

In rejecting the plaintiff’s demands against the nursing home the Court in Murphy stated, ‘A nursing home is not liable for injury caused by an untoward event unless it has breached a contractual agreement to furnish special care beyond that usually furnished which relates to the injury giving rise to the cause sued on.’

Having concluded that there are no genuine material facts for determination by a jury, as did the trial judge, we hold that the summary judgment was properly granted.

The nursing home alleges that it is additionally entitled to be exonerated by reason of a release signed when the wife entered the nursing home, a part of which release has been quoted above. We do not reach this issue and have quoted from the proported release merely because it is a circumstance surrounding the relationship of the parties.

Affirmed.

Shaw, J., concurs. Goolsby, J., dissents in separate opinion.