Conlon v. G. Fox & Co.

• Decision Date: 05 June 1973
• Citation: 165 Conn. 106,328 A.2d 708
• Court: Connecticut Supreme Court
• Parties: Lelia CONLON et al. v. G. FOX AND COMPANY et al.

Page 708

328 A.2d 708

165 Conn. 106

Lelia CONLON et al. v. G. FOX AND COMPANY et al.

Supreme Court of Connecticut.

June 5, 1973.

Patrick J. Flaherty, Hartford, for appellants (defendants).

Herbert Watstein, Bristol, for appellees (plaintiffs).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

In this appeal from a judgment awarding damages to the plaintiffs Lelia Conlon and her husband for injuries claimed to have resulted from the negligent application of a permanent wave to Mrs. Conlon's hair, the principal issues raised for our consideration relate to (1) the applicability of the doctrine of res ipsa loquitur and (2) the sufficiency of the evidence of causation to support the verdict.

The first issue is raised by the defendants' attack on the court's inclusion in its charge of references to the doctrine of res ipsa loquitur which the defendants claim was inapplicable by reason of the absence of evidence establishing the basic conditions essential for its submission to the jury. Claims of error addressed to the charge are to be tested by the claims of proof as they appear in the finding. Practice Book § 635; DePaola v. Seamour, 163 Conn. 246, 249, 303 A.2d 737; Intelisano v. Greenwell,155 Conn. 436, 444, 232 A.2d 490.

At the trial, the plaintiffs offered evidence to prove and claimed to have proved the following facts: On March 16, 1968, the named plaintiff, hereinafter called the plaintiff, by appointment, was given a permanent wave at the defendants' beauty salon. Carl Calcasola, who substituted for the operator with whom the plaintiff had originally made her appointment, after examining the plaintiff's hair and scalp and washing and cutting her hair, gave her a permanent wave as described in the finding in considerable detail. Inasmuch as the plaintiffs have conceded, both in their brief and in oral argument, that they did not prove specific acts of negligence, it is sufficient to recite that in this procedure Calcasola put a band over the plaintiff's neck and ears and twice applied a permanent wave solution to her hair, once before and once after rollers were put on. Some time later, he took the plaintiff to a sink, washed her hair, rinsed it several times and put a neutralizer on it before removing the rollers. Immediately before giving the permanent wave, Calcasola's examination of the plaintiff disclosed no evidence of hair coloring, hair loss, or head, hair or scalp abnormalities.

The plaintiff further claimed to have proved that on her way home from the beauty parlor on the date in question, her scalp and head felt hot and feverish. When she arrived home the plaintiff looked at her head in a mirror, and saw that it was very red and "it was just like a scalp burn where you had fluid underneath a bubble." The next day, when Dr. Edward J. Zebrowski examined the plaintiff, he found that her hair was partially burned and scraggly with blisters on the scalp containing serum which he diagnosed as typical second-degree chemical burns of the scalp. He found the top layers of the skin of the plaintiff's scalp to have been destroyed by burns and treated her with antibiotic ointment. Dr. Zebrowski's bill which was in evidence refers to "burns of scalp and posterior neck" of the plaintiff.

The plaintiff also testified that prior to March 16, 1968, she had no problems with her hair, did not have hair breakage, had never had her hair colored or dyed, had never used home permanents and had had beauty parlor permanents without any problems.

The defendants offered evidence to prove and claimed to have proved that Calcasola, a well-trained hairdresser and operator of beauty salons with over thirty years of experience in that field, had applied to the plaintiff's hair two bottles of liquid manufactured and distributed by Sue Corey, Inc., of Chicago, Illinois, one containing a permanent wave lotion and the other containing a neutralizer; that the permanent wave lotion was contained in an individual patron-sized bottle labeled at the seal: "Do not accept if this band is broken"; that the products were accompanied by the manufacturer's printed instructions and that the entire contents of the bottles were used in giving the plaintiff her permanent wave. Calcasola did not know the chemicals contained in the products. He did not do the buying for the salon but he had seen the lotion bottles brought into the salon in packages. Although the manufacturer suggests that operators wear rubber gloves while using the permanent wave lotion, Calcasola and most other operators never wear them. The plaintiff felt that Calcasola knew what he was doing, she did not know which solution was on her hair while she was at the sink, and after the permanent her hair looked "beautiful" by her own admission. After completion of the permanent, she went home and returned to the salon three days later and exhibited blisters on her scalp and the nape of her neck which were oozing and scabbed over. On prior occasions, the plaintiff's body had broken out with a rash when she was taking lozenges for a sore throat and she had developed, when pregnant, an itch and a rash for which a physician had treated her with a salve.

It is the claim of the defendants that, on the foregoing evidence, the court erred in interjecting the doctrine of res ipsa loquitur into its charge for consideration by the jury with...