Model: freelawproject/modernbert-embed-base_finetune_8192
Author: freelawproject
Pipeline: sentence-similarity
Library: sentence-transformers
Tags: sentence-transformers, safetensors, modernbert, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:351, loss:MultipleNegativesRankingLoss, en, arxiv:1908.10084, arxiv:1705.00652, base_model:nomic-ai/modernbert-embed-base, base_model:finetune:nomic-ai/modernbert-embed-base, license:cc0-1.0, model-index, text-embeddings-inference, endpoints_compatible, region:us
Base models (finetune): id: nomic-ai/modernbert-embed-base
Card metadata: language: en
tags: sentence-transformers, sentence-similarity, feature-extraction, generated_from_trainer, dataset_size:351, loss:MultipleNegativesRankingLoss
base_model: nomic-ai/modernbert-embed-base
widget: source_sentence: Rose, J. Appeal from a judgment of the Supreme Court ( Malone, Jr., J. ), entered June 13, 2001 in Albany County, which partially granted petitioner ’ s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Health reducing a component of its Medicaid reimbursement rate. Petitioner, a residential health care facility operating in Chemung County, commenced this proceeding seeking, inter alia, annulment of respondents ’ determination adjusting its case mix index based on misclassifications revealed in an audit of patient review instrument data conducted by the Department of Health ( hereinafter Department ) and recalculating petitioner ’ s Medicaid reimbursement rate for the period beginning April 1, 1999. 1 Specifically, the Department found that petitioner had improperly classified 28 patients as receiving restorative therapy rather than maintenance therapy, reduced petitioner ’ s reimbursement rate accordingly, and directed that future patient assessments be performed by an independent auditor. Petitioner argued that the Department ’ s nurse - auditors had improperly “ second - guessed ” the physician - prescribed rehabilitative care plans for its patients by denying reimbursement even though petitioner had provided restorative therapy as prescribed. Petitioner also argued that the Department acted arbitrarily and capriciously in using a fixed general rule precluding reimbursement for restorative therapy unless it produces actual improvement ( hereinafter actual improvement standard ) that has not been properly adopted and filed as a formal regulation. Supreme Court accepted this latter argument, granted the petition and remitted the matter to respondents to review the patient classifications without re * 773course to the actual improvement standard. Respondents now appeal. 2 Respondents argue that Supreme Court ’ s ruling was improper because the Department ’ s actual improvement standard is based on a rational interpretation of an existing regulation and, thus, is not an unfiled rule. Petitioner reiterates its contentions that the denial of reimbursement for restorative therapy provided to its patients was improper both because it was based on an auditor ’ s after - the - fact medical judgment and on an unfiled rule requiring actual improvement. Since the Department ’ s auditors were not required to defer to the judgments of petitioner ’ s physicians and therapists in retrospectively reviewing what patient care qualified for Medicaid reimbursement ( see, Concourse Rehabilitation & Nursing Ctr. v DeBuono, US Dist Ct, SD NY, June 11, 1988, Conti, J., slip op at 12, appeal dismissed 179 F3d 38 ), we find no merit in petitioner ’ s first contention. Rather, as considered by Supreme Court and as presented on appeal, the central issue is whether respondents ’ actual improvement standard for the restorative therapy classification is a rational interpretation of an existing regulation or a new unfiled rule being applied in violation of the State Administrative Procedure Act. Under 10 NYCRR 86 - 2. 30 ( i ) ( Instructions : Patient Review Instrument [ PRI ] [ 27 ] ), a restorative therapy classification is proper where “ [ t ] here is positive potential for improved functional status within a short and predictable period of time ” and the “ [ t ] herapy plan of care and progress notes * * * support that [ the ] patient has this potential / is improving. ” In its clarification sheet provided to nursing homes, the Department explains that the phrase “ has this potential / is improving ” means that the patient must demonstrate both the potential for functional improvement and the actual occurrence of such improvement in order to qualify for the restorative therapy classification. On this appeal, the Department acknowledges that it has a fixed policy of applying the quoted regulation in this manner. Contrary to Supreme Court ’ s conclusion, we find that the Department ’ s clarification sheet is interpretive, that its interpretation has a rational basis and that, therefore, the resulting actual improvement standard does not constitute an improper unfiled rule ( see, State Administrative Procedure Act * 774 § 102 [ 2 ] [ b ] [ iv ] ; see also, Matter of Dubb Enters. v New York State Liq. Auth., 187 AD2d 831, 833 ; cf, Matter of Cordero v Corbisiero, 80 NY2d 771, 772 - 773 ; Matter of Stuyvesant Polyclinic v Axelrod, 117 AD2d 99, 101 ). Generally, “ courts will defer to an agency ’ s interpretation of its own regulations if not irrational ” ( Matter of Silver Lake Nursing Home v Axelrod, 156 AD2d 789, 790 ; see, Matter of Marzec v DeBuono, 95 NY2d 262, 266 ; Matter of County of Rockland v Axelrod, 157 AD2d 960, 961 ), and the agency ’ s interpretation is not rendered irrational simply because the regulation may be susceptible to a different rational interpretation ( Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239 ). Petitioner focuses on the role played by the forward slash or virgule in the phrase “ patient has this potential / is improving. ” Arguing that common usage reflects that the virgule merely means “ or, ” petitioner concludes that the Department ’ s requirements of potential improvement and actual improvement contradicts the language of the regulation. Our view of the use of the virgule in the regulation at issue here leads to a contrary conclusion. “ Virgule ” has been defined as a symbol used to denote, inter alia, “ or ” or “ and or ” ( see, Webster ’ s Third New International Dictionary 2555 [ unabridged 1986 ], cross - referencing “ diagonal, ” Webster ’ s Third New International Dictionary 622 [ unabridged 1986 ] ). Even defined in this way, the virgule allows for usage as “ and, ” resulting in no contradiction when both alternatives apply. However, “ virgule ” is more comprehensively defined as “ a short oblique stroke ( / ) between two words indicating that whichever is appropriate may be chosen to complete the sense of the text in which they occur ” ( Random House Dictionary of the English Language 2125 [ unabridged 2d ed 1993 ] ). This definition is particularly apt here because the phrase “ patient has this potential / is improving ” follows, and is parallel to, the preceding phrase “ therapy plan of care and progress notes. ” To interpret the entire regulation, rather than parse the latter phrase only, it is rational to view the virgule as indicating that the reader should use the words that most appropriately complete the sense of the whole sentence. As the earlier phrase has two concepts with one anticipating future progress and the other reporting actual progress, the phrase “ patient has this potential / is improving ” provides the choice between potential and actual circumstances depending upon whether a plan for a patient or a patient ’ s progress is being considered. Interpreted this way, the regulation requires a therapy plan to set forth the patient ’ s potential for improvement and the patient ’ s prog * 775ress notes to reflect actual improvement in order to qualify as restorative. Such an interpretation is also consistent with the overall regulatory scheme, for it seeks to assure that restorative therapy is utilized when it potentially will result in patient improvement while excluding reimbursement if the expected improvement is not achieved ( see, Concourse Rehabilitation & Nursing Ctr. v Whalen, 249 F3d 136, 143 - 146 ). 3 Given the parallel structure of the pertinent phrases of the regulation and the recognized use of the virgule to implement such parallelism, we find no conflict between the cited regulation and respondents ’ interpretation, and conclude that their interpretation has a rational basis. Finally, petitioner ’ s contention that the issue is not judicially reviewable because the Department, through its auditors, did not expressly rely on the actual improvement standard in reclassifying petitioner ’ s patients is belied by the petition itself, which narrowly framed the issue by asserting that the Department ’ s actual improvement standard had resulted in the reclassifications. Accordingly, it was error to grant the petition and require further assessment by the Department. Crew III, J. P., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as partially granted the petition ; petition denied in its entirety ; and, as so modified, affirmed. . We refer the reader to Concourse Rehabilitation & Nursing Ctr. v Whalen ( 249 F3d 136 ) for an overview of the Medicaid program and Matter of Teresian House Nursing Home Co. v Chassin ( 218 AD2d 250 ) for a description of its process for auditing patient assessments. . Since the judgment issued by Supreme Court is nonimal and, thus, not appealable as of right ( see, CPLR 5701 [ b ] [ 1 ] ; [ c ] ), we exercise our authority to grant permission to appeal sua sponte given the importance of the issue presented ( see, Matter of Gane v Ambach, 135 AD2d 1013, 1013 - 1014 ). . The Health Care Financing Agency ’ s “ Carriers Manual ” provides as follows : “ Restorative Therapy. To constitute physical therapy a service must, among other things, be reasonable and necessary to the treatment of the individual ’ s illness. * * * In addition, there must be an expectation that the patient ’ s condition will improve significantly in a reasonable ( and generally predictable ) period of time. However, if at any point in the treatment of an illness, it is determined that the expectations will not materialize, the services will no longer be considered reasonable and necessary ; and they, therefore, should be excluded from coverage under § 1862 ( a ) ( 1 ) of the Social Security Act [ 42 USC § 1862 ( a ) ( 1 ) ] ” ( Carriers Manual, part 3, ch II, § 2210. 1 [ emphasis supplied ] ).
sentences: What are the legal standards for proving legal malpractice in New York?, What are the criteria for granting a motion to dismiss in a criminal trial?, What determines Medicaid reimbursement eligibility for restorative therapy in New York?, source_sentence: Bacon, J. The grounds on which the plaintiffs ask the relief to which they suppose themselves entitled are two fold. First, they allege that the proceedings of the defendants are calculated to do incalculable injury to the farms of the plaintiffs, by cutting off and drying up their springs, and destroying the growth of their young timber, and that these proceedings are conducted in bad faith and with the intent to injure the plaintiffs, and benefit the lands of other parties not contributing to the expense of the work ; and secondly, they insist that the act under which the defendants are assuming to perform the work in question is unconstitutional and void, as depriving the plaintiffs of their property, not for any public use, and without providing them a just compensation therefor. I shall spend no time upon the first branch of the plaintiffs ’ case, because there is no evidence whatever before me tending to show that the defendants are acting in bad faith ; and although there is some diversity of opinion whether the mode adopted by the defendants is the one best calculated to secure the result at which they are aiming, and whether the manner of its execution is the most judicious, yet this may be deemed at best a balanced question, on the evidence. Even if they err in judgment, a court would hardly be justified in interfering by the summary process of injunction to restrain their proceedings. Unless the defendants are violating the plain and manifiest intent and object of the statute under which they are acting, or are proceeding in bad faith, the court should not interpose its a, u * 168thority to suspend the work. In either aspect, I see no sufficient ground, as disclosed by the evidence, to entitle the plaintiff to the relief they ask under the first head of their complaint. The more important question, as it was the one most elaborately and ably argued by the counsel on both sides, respects the inquiry whether the act of April 16th, 1854, under which the defendants are carrying on the work of draining, the Rome swamp, is not a violation of the constitution, and therefore void. The plaintiffs ’ counsel insists that the act is a violation of the constitutional inhibition against taking private property, because, ( 1. ) It is not taken for a public use ; and ( 2. ) Because no just compensation is provided for the parties whose property is taken. I. That the property of A. cannot be taken and appropriated to the use of B., however beneficial the change may bej and that the land of private citizens cannot be occupied by the government or any subordinate functionary clothed with legislative authority, under the pretense or the claim of improving it for the benefit of the occupant or his neighbors, requires no argument to demonstrate. It is by no means easy, however, to define the precise boundaries which limit the right to appropriate private property for public use ; or, in other words, to determine when the use shall be deemed public, and when not. It is insisted by the counsel for the plaintiffs that the purposes for which the property is taken in this case are not public, because the benefit is limited to, - and the expense assessed upon, a few individuals. But how are we to determine the number to whom the benefit will be confined? In the case of draining an extensive swamp, we can readily conceive that the public health may be favorably affedted, throughout a wide region, within and bordering upon the district where the work is carried on, and it surely is for the public benefit that a large tract of land should be reclaimed from the condition of a useless morass, and added to the agricultural resources of the state. But the question returns upon us, who is to judge of the degree of necessity which exists, and which alone will warrant the action of the legislative authority in determining that private property may * 169be taken for public uses? It is now well settled, if there ever has been any well founded doubt upon the proposition, that the right of “ eminent domain ” remains in the government, or in the aggregate body of the people in their sovereign capacity, and they have the right to resume the possession in the manner directed by the organic and the statute laws of the state, whenever the public interest requires it. The answer to the question I have proposed, is perhaps no where better given than by the late chancéllor of this state in the leading case of Beekman v. The Saratoga & Schenectady Rail Road Co. ( 3 Paige, 73. ) “ If the public interest can in any way be promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose. ” He adds, “ upon this principle, not only the agents of government, but also individuals and corporate bodies, have been authorized to take private property for the purpose of making public highways, turnpike roads and canals, of erecting and constructing wharves and basins, of establishing ferries, of draining sioamps and marshes, and of bringing water to cities and villages. In all such cases the object of the legislative ' grant of power is the public benefit derived from the contemplated improvement. ” The use and benefit is not required to be universal, nor, in the largest sense, even general. If it is confined to a specific district, it may still be public. If some parties are more benefited than others, this forms no objection to the use, if the public interest and convenience are thereby subserved. Isolated and individual action will rarely secure the public and general result which the legislative power is invoked to accomplish ; and, in view of all the facts in this case, it is to be assumed that the legislature adjudged that the public necessity or utility justified the exercise of the right of resumption, and that the exigency existed which authorized the act in question. I do not say that a case may not exist of such palpable and gross invasion of private rights, unjustified by any semblance of pub - * 170lie necessity, that it would he the duty of the courts to interfere for the protection of such rights, by pronouncing the act a violation of the salutary principle which was designed to hold the legislative authority in check. But the case must be very clear to warrant this interference. On this part of the case, it is pertinent also to remark, that for the last fifty years, at least, the legislature has exercised the power in question here, by passing laws from time to time, authorizing, in various forms, the draining of swamps and marshes, and the reclaiming of submerged lands. More than twenty such acts will be found in the session laws of the state, commencing as early as 1804, and continuing at various intervals down to the very last session of the legislature, when the act in question was passed. This course of legislation is by no means conclusive when a constitutional question arises, which may never have been agitated in the courts, - under any of those acts. And we have been admonished by more than one decision that no length of time, in which a course of legislation has been continued, will protect any law from the condemnation of the judicial tribunals, when its conflict with the constitution is brought distinctly to the test. ( See opinion of Bronson, J. in Taylor v. Porter, 4 Hill, 140. ) While, therefore, it is not affirmed that. these acts may be appealed to as decisive of the power of the legislature to pass them, and that they are not within the constitutional objection we have been considering, they nevertheless do lend some strength to the argument that a power so long exercised, in such diversified forms and various localities, may be deemed settled, as applied to the subject we are now considering. Looking then at the principle which lies at the foundation of the right of the government to take private property for public use by an appropriate act of legislation, and the end which in this case may be fairly deemed the object and intent of the act, I shall - find no difficulty in maintaining it as the lawful exercise of the right of eminent domain, and holding that the taking of the lands of these plaintiffs, so far as it was necessary to enter upon and appropriate them for the purpose intended in this case, was and is a lawful taking of the same for a public use. • * 171II. But there is an important condition connected with the exercise of this power on the part of the government to take private property for the public use ; and that is, the necessity of providing a just compensation to the parties whose property shall be thus appropriated. This condition is fundamental and imperative, and can only be satisfied by making such a provision as shall be in truth “ just, ” or, in other words, adequate and compensatory. “ The principle, ” says Oh. J. Savage, ( Matter of Canal street, 11 Wend. 154, ) “ that private property shall not be taken for public use without just compensation is found in the constitution and laws of this state, and has its foundation in those elementary principles of equity and justice which lie at the root of the social compact. ” And this provision must be made cotemporaneously with, and as a part of, the act which authorizes the appropriation : For, in the language of Oh. Walworth, ( 18 Wend. 17, ) “ Before the legislature can authorize the agents of the state and others to enter upon and occupy, or destroy or materially injure, the private property of an individual, except in case of actual necessity " which will not admit of delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages or compensation, and he is not bound to trust to the justice of the government to make provision for such compensation by future legislation. ” And Kent, ( 2 Com. 389, ) recognizes the same doctrine when he says, “ a provision for compensation is a necessary attendant on the due and constitutional exercise of the power given to deprive an individual of his property without his consent, and the principle is founded in natural equity, and is laid down by jurists, as an acknowledged principle of universal law. ” Bearing these principles in mind, and that by the term “ just compensation, ” as used in the constitution, is to be understood “ a fair equivalent in money — a quid pro quo, a recompense in value for the property taken, ” ( Per Mason, senator, 18 Wend. 35 ; ) and remembering also that when private " property is taken for public use by right of eminent domain, it is taken not as the owner ’ s share of contribution to a public burthen, but as so much * 172beyond bis share — let us see whether the act of the legislature, under which the proceedings of the defendants in this case have been taken, fulfills the constitutional requirement on that subject. By the 3d section of the act of April 17th, ( Session Laws of 1854, p. 1000, ) it is made the duty of the commissioners to assess the costs and expenses of the survey and the cutting of the ditches, and to apportion the amount among the several owners of lands to be drained, according to the number of acres respectively owned by each. This provision, it will be seen, devolves the whole expenses upon the parties owning the lands to be drained ; and that not in the ratio of relative benefit, but simply upon a property basis, and by an equal assessment upon every acre throughout the swamp. The rule is highly objectionable in respect to the mode of providing for the expenses, but is probably within the scope of the legislative discretion as one form of the exercise of the taxing power. These burthens never can be very equally adjusted, and there is no glaring injustice in requiring those persons to pay the expenses, who are supposed to receive an equivalent in the enhanced value of their own adjacent property. On examining the act further, to ascertain what provision has been made for the damages or compensation to be made to the owner whose lands are entered upon and taken, we find the 11th section declares, that for any damages done to the owner or owners of such lands, ( fee., the commissioners shall make just compensation ; and after providing for their appraisal in the proper mode, it is declared that such damages, and the costs of assessment and the per diem > of the commissioners, shall be duly certified and “ assessed and collected as part of the expenses of the drainage authorized by this act. ” The effect of the provision is to make the damages or compensation to be collected and payable precisely as the expenses are, to wit, by assessing the same upon the owners of the land, according to the number of acres owned by each. But is this the “ just compensation ” contemplated and required by the constitution? Most obviously, it seems to me, it is not. The taking of land necessary for the work, and the dispossession of the owner ’ s right and title thereto, is only to be vindicated on the ground ' * 173that it is required for a public use. If the improvement is required for the public benefit, upon what principle can the public benefited by the appropriation, be exempted from their proper contribution to the just indemnification of the parties whose property has been taken? The land appropriated is not the owner ’ s share of a contribution to a public burthen, but is so much above and beyond his share. He should be compensated, therefore, and the compensation should be made in good part, if not entirely, by those who are benefited by the work accomplished, either in the increased salubrity of the surrounding region, or the enhanced value of the lands which lie in the immediate neighborhood. But by the operation of this section, the owner not only loses his land, but is compelled to pa. y a portion of the very damages he has sustained by such loss and the other consequential injuries he may have suffered thereby. The money which is supposed to satisfy the damages suffered by the owner may, in one sense, be said to find its way into one of the pockets of the proprietor ; but to accomplish that trick of legal legerdemain, it must first be taken out of the other. Is this the “ just compensation ” the constitution contemplates? Does it practically do any more than “ Keep the word of promise to the ear, To break it to the hope. ” Besides, the burthen will of necessity be very unequally apportioned among those who are doomed to bear it. It is incredible that every owner of land in the swamp will suffer equal injury and receive equal benefit from the work in question ; and the testimony in this case shows that such is not the fact. A. is the owner of 20 acres, which is a mere morass, having no available springs upon it, and no growth of timber which the progress of the work uproots and destroys. B., on an adjoining lot, has. both springs indispensable for the uses to which he is applying his already partially reclaimed land and a growth of young timber, very valuable for farming purposes. And yet, under the law as it stands, B. pays precisely at the same rate, as a compensation towards the damages he has suffered, that A. does, who has not only suffered no injury, but has been greatly benefited by * 174the appropriation of the land and the execution of the work. This clearly is no just compensation, but a most inequitable distribution of the burthens, which ought to be in some proximate proportion to the benefits. It is urged by the counsel of the defendants that the act in question follows the precedents of prior legislation on the same subject, and is formed on the model of various acts which have authorized similar works. I have looked through most of the acts on this subject in our session laws for many years, and it is true that in " a great majority of cases no provision whatever has been mad § for ascertaining or paying the compensation required to be made. These laws have been probably acquiesced in by the parties who were interested in or affected by them, and no question has been made in the courts, as far as I am aware, respecting their constitutional validity. If there had been, I am unable to see how they could have escaped judicial condemnation. But this has not been the invariable course of legislation on this subject ; for on examining the act of April, 1816, for draining the great marsh on the Caneseraga creek, I find an express provision, that in case any person shall suffer injury or damage by occasion of the canal and drainage of the land, his damages shall be ascertained by the commissioners, and assessed on the proprietor of such lands “ as would in any wise be benefited or made more valuable, by reason of the canal ” to be cut for the purpose of draining the said swamp. And the same provision was made in reference to the expenses, which were to be assessed in like manner, “ having reference to the benefit to be received by each of the proprietors. ” So also in the act of April, 1825, for draining the Cayuga marshes, it was made the duty of the commissioners, when the work should be completed, to prepare an assessment roll and valuation of the land reclaimed, and all other lands which in their opinion shall have been increased in value by the lowering of the waters of the marsh, and assess a tax to pay for the work, “ in an equal and just measure according to the valuation in the assessment roll, ” adequate to meet the expenses of the work. And a substantially similar provision is contained in the act of * 175February, 1822, for lowering Onondaga Lake, and draining the marsh lands in the town of Salina. [ Oneida Special Term, December 4, 1854. Bacon, Justice. ] These acts contain the proper provisions, and are, it seems to me, founded on the true principle which ought to govern legislation on the subject of appropriating private property for public uses. Nothing could have been easier than to have inserted in the act we have been considering, a section containing a provision similar to the one found in these acts, to which I have referred, and thus have secured all the benefits which are expected to, and doubtless. will, flow from a judicious discharge of the duties devolved upon these defendants, while it preserved all the constitutional guaranties which have been thrown around the rights of the private citizen. Future legislation may possibly ’ -, even now, remedy this omission, giving validity to what has already been done, but providing for that just indemnity and compensation to which it shall be found the parties are ultimately entitled. But whether this be so or not, the duty of the courts in a case where their interposition is invoked to stay proceedings under a law which violates a glain _ constitutional provision, is clear and imperative, and must be performed. , The plaintiffs are accordingly entitled to the relief demanded in the complaint, restraining the defendants from further proceedings under the act in question. But as the defendants have been charged with a public duty, under the apparent sanction of an act of the legislature, and have acted in entire good faith, the judgment must be without costs against them.
sentences: What legal principles govern the interpretation of insurance policy conditions for claims and notice requirements?, What are the requirements for obtaining a patent for an invention?, What are the legal principles for determining public use and just compensation under eminent domain?, source_sentence: Order affirmed, with ten dollars * 928costs and disbursements. All concurred, except Kruse, J., who dissented upon the ground that the order for examination appears upon its face to have been made under article 1 of title 3 of chapter 9 of the Code of Civil Procedure. Such an order can only be made by a judge and not by the court. If the. order was incorrectly entered it should have been resettled before the judge who presided at the court that made it.
sentences: When can a court issue a writ of prohibition to stop legal proceedings in a lower court?, What are the tax implications of a property sale in the United States?, What happens if a court order is improperly entered under civil procedure laws?, source_sentence: Loring, J. The defendant operates a private hospital for gain. The plaintiff went there to undergo an operation. She testified that " her physician made the arrangements for [ Tier ] entering into the hospital. . . . That she paid to the hospital $ 15 a week for attendance and $ 10 for the use of the operating room. ” The operation was performed by a surgeon not connected with the defendant hospital. The plaintiff was etherized by her family physician and he was not connected with the defendant. In addition to the surgeon and the family physician two of the defendant ’ s nurses were present at the operation. When the plaintiff was on the operating table before she went under ether she had two rings on her hands. After the operation and while the plaintiff was still under the effects of ether she was carried from the operating room to her own room in the hospital by “ one of the doctors assisted by the nurses. ” When the plaintiff came out of the ether she noticed that the more valuable of the two rings ( a ring which “ would not come off without assistance ” ) was missing. At the trial the plaintiff put the surgeon and the family physician on the witness stand. Each of them testified that he did not take the ring. The defendant put on the stand the superintendent of the hospital, one of the two operating nurses and the plaintiff ’ s day nurse. Each of them testified that she did not take the ring. The operating nurse who was put upon the witness stand testified that the other operating nurse was in California “ the last time she heard from ” her. The plaintiff made many requests for rulings and now insists upon the first, fifth, eleventh and twelfth set forth above. These were refused and an exception taken. The judge instructed the jury that to recover the plaintiff must prove that she was in the exercise of due care and that the defendant was negligent. An exception was taken to this ruling. The case is here on these exceptions. * 136On the evidence the jury were warranted in finding that the ring was forcibly removed from the plaintiff ’ s hand by the operating nurse who when last heard from was in California. If the absent nurse did steal the ring it is plain that the defendant is not liable on the ground that in stealing the ring the nurse was acting within the scope of her employment as a servant of the defendant. The first request for ruling therefore was properly refused. If the plaintiff had stood in the relation of a stranger to the defendant there would have been no error in the. trial. But the plaintiff did not stand to the defendant in the relation of a stranger. It is apparent from, the bill of exceptions that the case was not tried on the footing that the rights of the plaintiff in this action depended upon the contract made by her with the defendant. For this reason the terms of this contract do not appear as fully as they otherwise would have done. But from what does appear in the bill of exceptions the presiding judge was wrong in telling the jury that the defendant ’ s liability depended upon the plaintiff proving that it was negligent. . Under the contract entered into by the defendant corporation it was its duty not only ( 1 ) to give the plaintiff a room in the hospital before and after the operation and ( 2 ) to give her surgeon and family physician the use of the operating room for the operatian, but also ( 3 ) to give to the plaintiff the services of such nurses as were necessary for her care before, after and during the operatian. It expressly appeared at the trial that “ she [ the plaintiff ] paid to the hospital $ 15 a week for attendance. ” The services of the nurses which under the contract the defendant was bound to furnish the plaintiff included the services of nurses while she was unconscious from the effects of the ether, a condition which was a necessary part of the operation. And the question we have to decide is whether there was a violation of duty on the part of the defendant under this contract if the operating nurse in question stole the ring by forcibly pulling it off the plaintiff ’ s finger while she was under the effects of ether, or whether on the facts appearing at the trial the jury could have so found. We are of opinion that the jury could have so found. If for example a stranger had burst into the operating room, attacked the plaintiff and done her bodily harm or had attacked * 137the plaintiff while the nurses were carrying her from the operating room to her own room and the defendant ’ s nurses had stood by and done nothing to protect the plaintiff from those attacks, it is plain in our opinion that there would have been a violation of the duty owed by the defendant under its contract with the plaintiff. It is equally plain in our opinion that the duty owed by the defendant under its contract with the plaintiff extended to the care of the rings on her fingers while she was unconscious from the effects of ether as well as to the security of her person. And finally it is equally plain in our opinion that there is as much a violation of the duty owed by the defendant under the contract where the attack upon the person or larceny of the ring is committed by one of the defendant ’ s own nurses ( whose duty it was to protect the plaintiff ) as well as in the case where the attack is made by a stranger and the nurses do not undertake to protect her from the attack. In its legal aspects the case is governed by the decision in Bryant v. Rich, 106 Mass. 180. In that case a dispute arose between a passenger on one of the defendant ’ s steamers and one of the defendant ’ s waiters as to whether the passenger had paid for his supper. The plaintiff, a cousin of the passenger in question, made a suggestion to which no exception could have been taken. Whereupon not only the waiter in question but the head steward and the other waiters knocked down the plaintiff and beat him. It was for this assault and battery that the action in Bryant v. Rich was brought. The presiding judge ruled ( in accordance with a request made by the defendant ) that “ there is no evidence that the steward and waiters, in assaulting the plaintiff, were acting within the scope of any authority, or in the discharge of any duty, imposed upon them by the defendants. ” But in spite of this he instructed the jury that the plaintiff was entitled to recover. This ruling was sustained on the ground that as matter of contract the plaintiff as a passenger had the right to receive proper treatment from the defendants and their servants and all of them. This decision has been followed in other cases - of carriers of passengers. Hayne v. Union Street Railway, 189 Mass. 551. Jackson v. Old Colony Street Railway, 206 Mass. 477. Gentile v. Boston Elevated Railway, 217 Mass. 113. In Levins v. New York, New Haven, & Hartford Railroad, 183 Mass. 175, it was held that a case was * 138not made out under this rule where a purse had been accidentally - left on the window sill of the wash room of a car of the defendant company. In Fairbanks v. Boston Storage Warehouse Co. 189 Mass. 419, it was held that it did not apply where an assault was made by an attendant who under the rules of the defendant company accompanied the plaintiff when he went to examine goods stored by him in the warehouse of the defendant. The reason why the rule of Bryant v. Rich did not apply in the case of Fairbanks v. Boston Storage Warehouse Co. was because of the fact that the employee who made the assault was in attendance upon the plaintiff at the time in question for the plaintiff ’ s own purposes. He was not a servant of the defendant to whose services the plaintiff was entitled under his contract with the defendant. The decision in Bryant v. Rich does not depend upon the fact that the defendants in that case were common carriers. The decision would have been the same had the assault and battery occurred on an excursion steamer in place of upon a steamer operated by a common carrier. And the decision would have been the same if the steward and waiters had stolen rings from Bryant ’ s fingers in place of knocking him down as they did. The doctrine of Bryant v. Rich applies whenever there is a contract between the plaintiff and defendant by force of which the defendant is to furnish for the plaintiff ’ s comfort the services of its, the defendant ’ s, employees. Where the injury to the plaintiff is caused by an act of the defendant ’ s servants done in the course of their employment an action may be brought based on negligence of the defendant ’ s servants for which the defendant is liable because the act took place in the course of his servants ’ employment, or an action may be brought in that case based on violation of the duty owed by the defendant to the plaintiff under the contract between the defendant and the plaintiff. But where ( as was the case in Bryant v. Rich and in the case at bar ) the injury done the plaintiff is caused by an act of the defendant ’ s servants outside of the servants ’ duty as employees of the defendant but by an act of the defendant ’ s servants which while not in the course of the servants ’ employment is none the less a violation of the duty owed by the defendant under the defendant ’ s contract with the plaintiff, the only action that can be brought is an action founded upon the duty arising out of the contract. * 139The second count sufficiently sets forth a liability on the part of the defendant for violation of its duty under its contract with the plaintiff. It was held in Bryant v. Rich that “ for a violation of such a contract either by force or negligence, the plaintiff may bring an action of tort, or an action of contract. ” What has been said leaves open the defence which arises out of the testimony that the plaintiff when received into the hospital was asked to put into the custody of the defendant corporation all her “ valuables. ” The defendant ’ s agent who received the plaintiff when she came to. the hospital testified that that request was made to her at that time. The plaintiff on the other hand testified that she was asked to put her money into the custody of the hospital but that she was not asked to put anything else into its custody. If the defendant ’ s evidence is believed, a defence is made out. On the other hand if the plaintiff ’ s evidence on this matter is believed, her rights depend upon the rule of Bryant v. Rich, ubi supra. Exceptions sustained.
sentences: What are the tax implications of operating a private hospital for profit?, What legal principles determine a hospital's liability for the actions of its employees under a contract with a patient?, What are the legal implications of improperly imposed sublet surcharges in cooperative housing disputes?, source_sentence: Welsh, J. This is an action alleging negligence in the operation of a motor vehicle. The case was tried before a jury. A verdict was returned indicating that the defendant was not negligent The issue on appeal is whether the judge erred in failing to instruct the jury in accordance with G. L. c. 89, § 8, ( the general “ right of way ” at intersections ) as well as G. L. c. 89, § 9 ( the duty of a motorist at an intersection governed by a stop sign ). We determine there was no error. The following evidence was adduced at trial. On January 9, 1996, the plaintiff was operating a motor vehicle on Revere Street a public way in Quincy. She testified that she came to a complete stop at a “ stop ” sign at the intersection of Revere Street and Mechanic Street also a public way. A large mound of snow obstructed her view and she was unable to see the intersection. She proceeded out into the intersection and stopped again about half way into the intersection. The passable roadway was narrowed considerably due to the snow banks on the sides of the road. She allowed a white car to pass her and then started up again. She testified that she saw the car operated by the defendant approaching at a speed of 45 miles per hour ; nevertheless she proceeded through the intersection, making a left turn in the path of the oncoming vehicle. The defendant ’ s vehicle struck the left side of the plaintiffs vehicle, with left hand side damage to the defendant ' s vehicle. The defendant testified that the plaintiff did not stop. The jury determined that the defendant was not negligent The court gave comprehensive instructions on the elements of negligence and the duty of care. The court specifically instructed the jury as to the issue of violation of a statute as evidence of negligence, taking pains to explain that the violation, if found, must be a contributing factor to the damage sustained by the plaintiff. See Minnehan v. Hiland, 278 Mass. 518, 523 ( 1932 ). He specifically charged as to the duty to stop at a stop sign as provided by G. L. c. 89, § 9. 2 The plaintiff ’ s quarrel with the judge is that he failed specifically to instruct as she requested regarding G. L. c. 89, § 8, the general duty of care applicable when two motorists arrive at an intersection at approximately the same time. There was no error. G. L. c. 89, § 8 expressly provides that its provisions do not * 138apply when an operator is otherwise directed by a traffic regulatory sign erected and maintained in accordance with the provision of Sec. 2 of Ch. 85 ( which would include “ stop ” signs ). See Canane v. Dandini, 355 Mass. 72, 75 ( 1968 ). G. L. c. 89, § 9 is the statute that is primarily applicable to intersections governed by stop signs. As stated in Canane, one directed to stop by a stop sign may not have the benefit of the general rule if the rule grants him the right of way, until he has complied with the order to stop. After stopping, the operator becomes subject to the general rule and may proceed and thereafter exercise the right of way in accordance with that rule. Id. at 75. However, the operator must proceed into the intersection with due care. Even if the operator has the right of way under c. 89, § 8, that right is subject to the requirement of using due care. Possession of the right of way is only one factor to be considered in deciding whether the operator has fulfilled his duty of due care. Id. at 76. Accordingly, an operator who has stopped at a “ stop ” sign may still be found to be negligent if he proceeds into the intersection without using due care. The duty to exercise due care requires an operator who has halted at a stop sign to behave with reasonable caution before entering the intersection. Even an operator who has stopped at a stop sign and has a “ right of way ” under § 8 may be found to be negligent if he proceeds into the intersection before he can do so with reasonable prudence and with suitable regard for his safety and that of others. Freyermuth v. Lutfy, 376 Mass., 612, 616, N. 3. ( 1978 ). Again, the “ right of way ^ rule in § 8 is not absolute, but is subject to the condition of due care as to its exercise. With these principles in mind, we turn to the judge ’ s charge. At the outset, we observe that it is not required that the judge charge the jury in the precise formulation proposed [ see Poole v. Boston & Main Ry., 216 Mass. 12, 15 ( 1913 ) ] so long as the judge fairly and adequately covers the point in the charge. See Comeau v. Beck, 319 Mass. 17, 10 ( 1946 ) ; Squires v. Fraska, 301 Mass. 474, 476 ( 1938 ). Stated somewhat differently, the denial of requested instruction does not constitute error where the requested instructions were covered substantially in the charge. Pearlin v. Farrell, 356 Mass. 741 ( 1970 ). The judge gave detailed and comprehensive instructions on the concept of negligence in the context of operating of motor vehicles. He explained the duty of a motorist with regard to intersections controlled by stop signs. This explanation included the duty to yield to vehicles in or in close proximity to the intersection. While the instruction did not follow precisely the formulation suggested in the Canane and Freyermuth cases, the judge ’ s instruction properly stressed the duty of due care when proceeding into the intersection governed by the stop sign after having stopped. Appeal dismissed. So ordered. “ Another rule of the road is that every driver approaching a stop sign, shall stop at a clearly marked stop line, and if there is not a stop line, then [ at ] a point nearest the intersecting roadway before entering it After having stopped, the driver shall yield the right of way to every vehicle in the intersection or approaching in [ the ] other roadway so closely as to constitute an immediate hazard during the time when the driver is moving across or within the intersection. ”
sentences: How is rent abatement calculated in cases involving a breach of the warranty of habitability in Section 8 housing?, What are the legal requirements for establishing a valid contract in business law?, What is the legal duty of care for drivers at intersections with stop signs?
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