# Cowan v. Doering > Supreme Court of New Jersey · August 11, 1988 · 111 N.J. 451 URL: https://www.frixlaw.com/law-library/cases/9647468 ## Case - **Full name:** Marilyn M. Cowan, Formerly Known as Marilyn M. Lombardo, Plaintiff-Respondent, v. Richard Doering, M.D., Alexandre Ackad, M.D., and Carole Eltridge, R.N., Defendants-Appellants, and Allwyn J. Levine, M.D., Lois Papp, R.N., Chris Taylor, R.N., Kathleen Barlics, R.N., Sharon Kroll, R.N., Mary Doe, R.N., Jane Doe, R.N., Betty Doe, R.N., and Nancy Doe, R.N., (The Doe Names Being Fictitious and Unknown), and the Valley Hospital, Defendants - **Court:** Supreme Court of New Jersey - **Decided:** August 11, 1988 - **Citations:** 111 N.J. 451; 545 A.2d 159; 1988 N.J. LEXIS 91 - **Precedential status:** Published - **Opinion:** Dissent by Clifford - **Judges:** Clifford, Handler - **Cited by:** 84 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647468 ## How later opinions describe it (automated extraction) - affirming judgment after jury verdict for plaintiff hospitalized after overdosing on sleeping pills in earlier suicide attempt who claimed that physicians, nurses, and hospital negligently failed to prevent her jumping from second-story hospital room, and holding that issue wh… - noting that “even though plaintiff’s conduct had no relevance in terms of her fault or contributory negligence, the evidence submitted concerning her conduct was considered by the jury as it related to defendant’s ultimate responsibility, through the concept of proximate cause” - noting that "even though plaintiffs conduct had no relevance in terms of her fault or contributory negligence, the evidence submitted concerning her conduct was considered by the jury as it related to defendant's ultimate responsibility, through the concept of proximate cause" - holding that the jury properly rejected the defense of intervening cause because it was foreseeable that defendants’ conduct created a risk that plaintiff would attempt suicide ## Opinion text CLIFFORD, J., dissenting. This appeal presents the single issue of whether the trial court erred in refusing to instruct the jury on contributory negligence. The Appellate Division held that because plaintiff committed the very act that defendants were under a duty to prevent, she could not, as a matter of law, be guilty of contributory negligence. “Plaintiff’s willful destructive propensities were plainly part and parcel of the mental illness from which she suffered. A triable factual question was not presented in that regard.” Cowan v. Doering, 215 N.J.Super. 484, 496 (1987). The Court agrees: “Because [defendants’] duty of care included the prevention of [plaintiff’s] self-damaging acts, the plaintiff’s actions and capacity were subsumed within the defendants’ scope of duty. Thus, the trial court correctly ruled that the defense of contributory negligence was not available.” Ante at 468. *469 To the extent that I understand the foregoing, I disagree with it. The jury could well have found from defendants’ psychiatric testimony that plaintiff’s conduct was a calculated, manipulative gesture rather than a genuinely suicidal act. This is borne out by the unobjected-to testimony of defendant Doering that all plaintiff was trying to do at the time of her fall was get out of the hospital. [H]er comment to me * * * was that she wanted to leave the hospital. She did not want to hurt herself. In addition, there were unobjected-to questions by counsel, the record support for which is concededly obscure, that incorporated expressions such as “lowered herself out” of the window and “dropped out” from a level that was twelve feet above a surface the composition of which is not disclosed by the record. So there were facts in the record that lend support to the theory, far-fetched to be sure, that plaintiff was doing no more than pursuing an unorthodox method of departure. The point is that one version of the facts surrounding plaintiff’s fall, coupled with evidence that plaintiff was sufficiently competent to appreciate the risk (her statement to Doering about her intentions and her manner of departure suggest that she did indeed appreciate the risk), supports the proposition that contributory negligence should have stayed in the case as a defense. Plaintiff had some responsibility for her own well-being, even if it was to exercise only that degree of care that a person in her condition was capable of exercising. Until the trial court on its own motion took contributory negligence out of the case, plaintiff’s counsel apparently assumed, along with everyone else except the judge, that it was a legitimate issue. Because I believe that defendants should not have been deprived of the opportunity to have the jury consider that issue, I would reverse and remand. POLLOCK, J., joins in this opinion. *470 For affirmance — Chief Justice WILENTZ and Justices HANDLER, O’HERN, GARIBALDI and STEIN-5. For reversal and remandment — Justices CLIFFORD and POLLOCK-2. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647468. Public record. Not legal advice.