Fowler v. Seaton

• Decision Date: 21 August 1964
• Citation: 39 Cal.Rptr. 881,61 Cal.2d 681,394 P.2d 697
• Court: California Supreme Court
• Parties: , 394 P.2d 697 Jenny Gene FOWLER, a Minor, etc., Plaintiff and Appellant, v. Annabelle SEATON, Defendant and Respondent. L. A. 27865

Page 881

39 Cal.Rptr. 881

61 Cal.2d 681, 394 P.2d 697

Jenny Gene FOWLER, a Minor, etc., Plaintiff and Appellant, v. Annabelle SEATON, Defendant and Respondent.

L. A. 27865.

Supreme Court of California

Aug. 21, 1964.

William P. Camusi, Los Angeles, for plaintiff and appellant.

Parker, Stanbury, McGee, Peckham & Garrett and Francis J. Cronin, Los Angeles, for defendant and respondent.

PETERS, Justice.

Plaintiff, Jenny Gene Fowler, a minor, appeals by her guardian ad litem (her father) from a judgment of nonsuit in an action for damages for injuries sustained by plaintiff while attending defendant's private nursery school.

The sole issue is whether the evidence, including all reasonable inferences, viewed, as must be done on an appeal from a judgment of nonsuit, more favorable to the plaintiff, presents a case where the jury could find that the doctrine of res ipsa loquitur applies. It is our opinion that the jury could so find, and, for that reason, that the judgment should be reversed.

First, as to the facts. In a conference held prior to the selection of a jury, the trial judge, being advised of the basic facts of the case, and of plaintiff's contention that res ipsa loquitur applied thereto, indicated the view that 'a nonsuit situation' might be presented. Counsel for both parties then stipulated that, in order to save time, the jury would be deemed impaneled and sworn and the matter of nonsuit could be presented to and ruled on by the court on the basis of plaintiff's opening statement to the jury. Thus, on this appeal, the opening statement is crucial. It is as follows:

'Plaintiff in this case of Fowler versus Seaton expects to prove the following facts: Minor plaintiff, Jenny Gene Fowler began attending the Happy Day Nursery School in September, 1958. The Happy Day Nursery was a pre school nursery where children would be left for the day by their parents. Their nursery consisted of a house and a little children's playground with such play things as a swing and slide and similar paraphernalia. The Happy Day Nursery is located in the City of Van Nuys, County of Los Angeles, State of California. The Happy Day Nursery was owned and operated at all times herein relevant by the defendant, Annabelle Seaton.

'The nursery school made a weekly monetary charge to the parents of such pre school age children was attended there. The school is, of course, a private school and the defendant was at all times licensed to operate such a school.

'On January 21, 1959 the minor plaintiff, Jenny Gene Fowler was taken to the said Happy Day Nursery School by her mother and left in charge of any custody of the defendant at about 9:00 a. m. of that day. At that time Jenny Gene Fowler was three years and ten months of age. When her mother left her in the custody of the defendant on that morning of January 21, 1959, Jenny Gene Fowler was in good health and sound of limb and body and she was well and had no marks on her body.

'Jenny Gene Fowler's mother picked her up at the nursery school at approximately 6:00 p. m. of said day. At that time the defendant told plaintiff's mother that Jenny Fowler had had an accident in that the child had wet her pants.

'However, we will offer proof that the child had stopped wetting her pants approximately a year prior to this day of January 21, 1959.

'On the way home that evening and for the remainder of the evening the child appeared downcast or depressed and stayed close to her mother at all times. At the dinner table at approximately 7:00 p. m. Jenny Gene Fowler's father noticed that the child's eyes were crossed. The child's hair was arranged in bangs over her forehead and her forehead was not usually visible. At that time the mother approached the child to look into the child's eyes. The mother pushed the child's hair away from the forehead, for the first time noticed a sizable round protruding bump on the child's forehead.

'Jenny Gene Fowler had been in the mother's immediate presence ever since the mother had picked her up at the school, the nursery school, and the child had not received any injury or had not been in any accident whatsoever from the time she was picked up at the nursery school until her parents observed the cross eyes and bump on the child's forehead at the dinner table.

'The mother immediately called the defendant at the nursery school and asked what had happened to plaintiff at the school that day. Defendant replied that another child had struck the plaintiff.

'Attorney for the minor plaintiff took the deposition of the defendant Annabelle Seaton and Miss Seaton testified in effect as follows:

'Near the end of the day defendant had four or five children in a room seated in a semi circle on the floor looking at television while the children were waiting to be picked up by their parents. Minor plaintiff was one of the children in this group. None of the children in this group were more than five years of age. The defendant testified that she was in the room somewhat behind the children at the time observing them, when suddenly a little boy named Bobbie Schimp seated on the floor next to minor plaintiff hit minor plaintiff without warning in the forehead area of her head. The defendant testified that Bobbie Schimp had nothing in his hands.

'Some time early the following morning, January 22, 1959, minor plaintiff had a nose bleed and was vomiting. She also had a slight temperature. From the evening of January 21, 1959 minor plaintiff's eyes would intermittently cross and uncross until within several months the child's eyes were constantly crossed.

'The minor plaintiff had never had cross eyes before the accident. Plaintiff will prove by a competent medical doctor that plaintiff, Jenny Gene Fowler, suffered a concussion of the brain on January 21, 1959, and that a blow to the forehead and that said blow to the forehead caused said concussion, that said blow and assault resulted, and shock resulted in Jenny Gene Fowler's eyes becoming crossed.

'We will prove through said medical authority that some children have a latent tendency to crossing of the eyes. That the fusion mechanism which causes a person's eyes to function in parallel unison and see singularly is very delicately balanced in a small child the age of minor plaintiff, and that a blow or deep shock which might result from a blow may cause the fusion mechanism to cease to function properly and that the delicate muscles of the eyes become imbalanced.

'As a result of the accident minor plaintiff had had surgery to the right eye. Her eyes are still crossed. We will prove through a medical specialist that one additional operation will be necessary and possibly a third, that cosmetically the appearance of plaintiff's eyes can be improved to normal or almost normal position, she may have some impairment of good sight.

'We will offer proof of certain unpaid medical bills to which plaintiff is responsible and the estimated cost of future medical care and surgery to her eyes necessitated by the accident.

'(E)ither because of the shock or fright resulting from the accident or because of the age of plaintiff, she has been unable to state or give any information concerning the accident. No information is available from the other children because of their tender years.

'Plaintiff will prove through a medical doctor that the blow on the forehead and resulting concussion to minor plaintiff on January 21, 1959 was of such a force that it would have been impossible for a boy five years of age or less sitting on the floor with nothing in his hands to have delivered a blow of such force as to have caused the said injuries to minor plaintiff, and that the only inference that can be drawn is that the defendant, Annabelle Seaton is not telling us what really happened that day at the nursery school and that the only reasonable inference which can be drawn is that the defendant, Annabelle Seaton, did not exercise reasonable care for the safety of the children in her care and custody, and, more specifically with reference to minor plaintiff.

'I should also state with regard to the damages sustained by the minor plaintiff and as a result of her eyes crossing she has become more withdrawn and has certain psychological problems and has not done as well in school as she might otherwise had it not been for this accident.'

In accord with the agreement made prior to the trial defendant moved for a nonsuit at the conclusion of the opening statement. After argument by both parties directed solely to the question of whether the doctrine of res ipsa loquitur could be applicable the motion was granted and judgment was entered accordingly.

It is our opinion that the jury could find that the doctrine of res ipsa loquitur applies under the facts here involved. Generally, that doctrine applies 'where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.' (Siverson v. Weber, 57 Cal.2d 834, 836, 22 Cal.Rptr. 337, 372 P.2d 97; accord Faulk v. Soberanes, 56 Cal.2d 466, 470, 14 Cal.Rptr. 545, 363 P.2d 593; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446, 247 P.2d 344.) Conversely, where no such weight of probabilities can be found, res ipsa loquitur does not apply. (Tucker v. Lombardo, 47 Cal.2d 457, 465, 303 P.2d 1041; Zentz v. Coca Cola Bottling Co., supra, 39 Cal.2d at p. 442, 247 P.2d 344; La.Porte v. Houston, 33 Cal.2d 167, 169, 199 P.2d 665.)

One of the frequently quoted statements of the applicable rules is to be found in the opinion of Chief Justice Erle in Scott v. London & St. Katherine Docks Co. (1865) 3 H. & C. 596, quoted in Prosser on Torts (2d ed. 1955) section 42, at page 201, as follows: 'There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such...