Foster v. Delgrave
| Decision Date | 14 December 1954 |
| Citation | 129 Cal.App.2d 525,277 P.2d 408 |
| Parties | Birdie Rogers FOSTER, Plaintiff and Appellant, v. Mary A. DELGRAVE, individually; Mary A. Delgrave, operating and doing business as Community Hospital, Defendant and Respondent. Civ. 8447. |
| Court | California Court of Appeals Court of Appeals |
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellant.
Lamb, Hoge & Killion, by J. Hampton Hoge, Jr., San Francisco, William J. Cassettari, Grass Valley, for respondent.
This is an appeal from the judgment entered upon a jury's verdict in favor of respondent in a personal injury action in the nature of malpractice of a hospital in the care of a patient.
It is admitted that appellant suffered a second-degree burn on her left leg while she was under treatment at respondent's private hospital, which she entered at the request of her personal physician because of an infected toe. Upon her doctor's orders, one of the nurses employed by respondent applied hot compresses to appellant's leg over which was placed an electric heating pad. Appellant's left leg was then extended out over the edge of the bed in an elevated position. It is admitted by respondent that when the packing was removed approximately 48 hours later, it was discovered that appellant had sustained a second-degree burn on her leg. The burn healed slowly and she received medication therefor for many months. She still has a small scar on her leg as a result of the burn.
The sole question presented on this appeal is whether or not the trial court committed reversible error in refusing to instruct the jury on the doctrine of res ipsa loquitur as requested by appellant.
While the evidence shows that appellant knew that she was being burned, there is nothing in the record to show that she knew the specific cause thereof.
The heating pad was under the sole control of the respondent, and appellant was entitled to the benefit of an inference of negligence arising from the happening of this unusual accident, because respondent was in a far better position to know what caused the instrument to be dangerous. We therefore conclude that the doctrine of res ipsa loquitur was applicable to the facts of this case, and that the trial court erred in refusing to instruct the jury in that regard. Manuel v. Pacific Gas & Electric Co., 134 Cal.App. 512, 517, 25 P.2d 509; McCullough v. Langer, 23 Cal.App.2d 510, 517- 518, 73 P.2d 649; England v. Hospital of the Good Samaritan, 22 Cal.App.2d 226, 70 P.2d 692. See also 173 A.L.R. 535, 538, et seq.
Respondent argues that the doctrine of res ipsa loquitur is not available when the cause of the accident is known, and not in dispute. In support of respondent's position she cites 38 Am.Jur. 'Negligence', Sec. 303; Gordon v. Goldberg, 3 Cal.App.2d 659, 661, 40 P.2d 276; Keller v. Pacific Tel. & Tel. Co., 2 Cal.App.2d 513, 38 P.2d 182, and Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756. It is true that where the specific cause of the accident is known, the doctrine of res ipsa loquitur does not apply; however in the instant case we have an entirely different situation. As stated above, the specific cause of the burn was unknown to appellant. It may have been that the heating pad was defective or improperly adjusted, or that the compresses had been dipped in some harmful solution, or excessive temperature, or several other causes. These were all matters within the peculiar knowledge of the respondent. Heating pads are now of such general use that one may take notice of the fact that their use is not dangerous when ordinary care is exercised.
Respondent next contends that the complaint alleges negligence specifically, and that such fact precludes the application of the doctrine. The...
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Davis v. Memorial Hospital
...Cal.App.2d 439, 443-444 284 P.2d 133 (where 'wrist drop' was caused by an injection of a 'vitamin B complex'); Foster v. Delgrave, 129 Cal.App.2d 525, 526-527, 277 P.2d 408 (where the plaintiff was burned after an electric heating pad was applied over compresses on her leg).) The case of Si......
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Oldis v. La Societe Francaise De Bienfaisance Mutuelle
...that the compresses had been dipped in some harmful solution, or excessive temperature, or several other causes.' Foster v. Delgrave, 129 Cal.App.2d 525, 277 P.2d 408, 410. However, the facts of our case do not require us to go that far for the basis of our decision. We hold that plaintiff'......
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