
    
      Opinion issued February 14, 1980
    
    JAMES R. WATSON, WHO SUES BY HIS NEXT FRIEND, HIS BROTHER, RONALD R. WATSON vs. DEPARTMENT OF HEALTH
    (CC-77-169)
    
      John Boettner, Jr., Attorney at Law, for claimant.
    
      Frank M. Ellison, Deputy Attorney General, for respondent.
   RULEY, JUDGE:

The claimant seeks recovery of damages in the sum of $50,000.00 for injuries which he allegedly sustained when he was “severely and maliciously beaten” by three psychiatric aides while he was a patient at Spencer State Hospital on June 25,1975. As the result of a brain injury which he had sustained in an automobile accident in 1968, the claimant was unable to talk and was subject to epileptic seizures when he voluntarily was admitted to Spencer State Hospital in January, 1975. There can be no doubt that he was the victim of a severe beating on the evening of June 25,1975, and, if it was administered by the three psychiatric aides as he testified, it indeed was intentional and malicious. The evidence on behalf of the respondent was to the effect that it was administered by another patient incident to a fight between the two men. Although the claimant was a very persuasive witness and the Court certainly has compassion for him, the Court, in view of all of the evidence, cannot find that he has carried the burden of proving the extremely serious charge which he has made by a preponderance of the evidence. In addition, even if it did so find, there would be the remaining question of whether the respondent should be held liable for intentional and malicious torts committed by its employees under the circumstances of this case. In that connection, see 34A.L.R.2d 372 and 53 Am. Jur.2d Master and Servant §437. Accordingly, this claim must be denied.

Claim disallowed.  