Bates v. Design of the Times, Inc.

• Decision Date: 09 March 2001
• Docket Number: No. S-99-673.,S-99-673.
• Citation: 622 N.W.2d 684,261 Neb. 332
• Parties: Patti BATES, Appellant, v. DESIGN OF THE TIMES, INC., a Nebraska corporation, Appellee.
• Court: Nebraska Supreme Court

622 N.W.2d 684

261 Neb. 332

Patti BATES, Appellant, v. DESIGN OF THE TIMES, INC., a Nebraska corporation, Appellee.

No. S-99-673.

Supreme Court of Nebraska.

March 9, 2001.

Steven D. Davidson, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim LLP, Omaha, for appellant.

Michael G. Mullin, of McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Appellant, Patti Bates, brought this negligence action, claiming that she suffered a brain stem stroke as a result of the manner in which her hair was rinsed at the beauty salon of appellee, Design of the Times, Inc. (DOTT). DOTT filed a motion for summary judgment, which was granted by the trial court on the ground that Bates' medical evidence was insufficient to create an issue of fact regarding causation and, further, on the basis that there was insufficient evidence of a breach of duty on the part of DOTT. The Nebraska Court of Appeals, with one judge dissenting on the breach of duty issue, concluded that the trial court erred in finding that the medical evidence was insufficient. See Bates v. Design of the Times, Inc., 9 Neb.App. 260, 610 N.W.2d 41 (2000). However, the Court of Appeals affirmed the trial court's granting of summary judgment on the ground that there was no evidence of a breach of duty which had a causal connection with Bates' stroke. Bates filed a petition for further review to this court on the sole issue that the Court of Appeals erroneously concluded that "there is no evidence whatsoever of a breach of duty which had a causal connection with Bates' stroke." Id. at 268, 610 N.W.2d at 47. We accepted further review on this issue.

BACKGROUND

On March 11, 1995, Bates went to DOTT to get a permanent wave. Bates' stylist, Michelle Havorka, delegated the task of rinsing Bates' hair to a "technician," M'Lissa Golden, who directed Bates to lean back in a chair with her head extended over a rinsing bowl. Bates stated in her deposition that she experienced some discomfort while her head was extended over the sink and that after approximately 1 to 2 minutes, she lifted her head to relieve the discomfort. Bates did not say anything to Golden at that time. Golden placed her hand on Bates' forehead and said, "You're okay, you're fine," or something to that effect, and pushed Bates' head back down. Bates said she again felt discomfort and, after about another 1 or 2 minutes, she lifted her head again from over the sink. This time Golden asked, "What are you doing?" Bates replied that she was lifting her head so that Golden could rinse the rollers at the base of her neck. Golden replied that she had already done so. Bates did not verbalize any discomfort to Golden at that time. Bates put her head back down without Golden's assistance, and the rinsing continued. Bates stated that at some point, Havorka walked by, and Golden asked her how long she should rinse Bates' hair. Havorka told Golden to rinse it about 5 minutes. Bates stated that Golden then set a timer, but that she did not see the time Golden entered on the timer. Bates estimated that the rinsing lasted a total of 8 minutes.

Bates filed this negligence action, claiming that Golden failed to notice her discomfort and then relieve her discomfort while she was in a reclining position with her head over a sink and that as a result, she suffered an occluded vertebral artery which later developed into a stroke. On the motion for summary judgment, the trial court first found that Bates' medical evidence was insufficient to create an issue of fact regarding causation. The trial court also determined that the evidence did not show a breach of duty and noted that "[t]here is no evidence that the manner in which Golden hyperextended—placing [Bates'] head into the sink to begin the rinsing procedure—was done contrary to the standards of the industry."

The Court of Appeals concluded that the medical evidence was sufficient to create a factual issue regarding causation, but affirmed the trial court's judgment on the ground that there was no evidence of a breach of duty that had a causal connection with Bates' stroke. We granted Bates' petition for further review on the latter issue.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. McDonald v. DeCamp Legal Servs., 260 Neb. 729, 619 N.W.2d 583 (2000).

Where the facts are undisputed or are such that reasonable minds can draw but one conclusion therefrom, it is the duty of the trial court to decide the question as a matter of law rather than submit it to the jury for determination. Fraternal Order of Police v. County of Douglas, 259 Neb. 822, 612 N.W.2d 483 (2000).

ANALYSIS

The only issue before us is whether the record contains sufficient evidence to create a genuine issue of material fact for the jury's determination of breach of duty. The Court of Appeals determined that because Bates failed to verbalize her complaints to Golden, no reasonable person in Golden's position "could be expected to know that Bates was in such discomfort that she was being injured." Bates v. Design of the Times, Inc., 9 Neb.App. 260, 266, 610 N.W.2d 41, 46 (2000). The Court of Appeals found that there was no evidence whatsoever of a breach of duty. The dissent disagreed...