Hally v. Hospital of St. Raphael

• Decision Date: 02 February 1972
• Citation: 162 Conn. 352,294 A.2d 305
• Court: Connecticut Supreme Court
• Parties: Lawrence G. HALLY v. HOSPITAL OF ST. RAPHAEL et al.

Page 305

294 A.2d 305

162 Conn. 352

Lawrence G. HALLY v. HOSPITAL OF ST. RAPHAEL et al.

Supreme Court of Connecticut.

Feb. 2, 1972.

Stephen I. Traub, New Haven, for appellant (plaintiff).

Lawrence W. Iannotti, New Haven, for appellee (named defendant).

Francis A. Smith, Jr., Bridgeport, with whom was Edward M. Sheehy, Bridgeport, for appellee (defendant Calley & Currier, Inc.).

Before HOUSE, C.J., and COTTER, RYAN, SHAPIRO and LOISELLE, JJ.

COTTER, Associate Justice.

The plaintiff sued for damages he claimed to have sustained as a proximate result of the negligence and breach of warranties of the defendants Hospital of St. Raphael and Calley & Currier, Inc. In addition, a claim in strict tort liability was alleged against Calley & Currier, Inc. The plaintiff's action was brought in five counts. The first two counts were brought against the hospital for corporate neglect and breach of an implied warranty in the sale of crutches by the hospital to the plaintiff. The trial court directed a verdict in favor of the defendant hospital on the first count, from which an appeal has not been pursued. The three remaining counts against the defendant Calley & Currier, Inc., are, seriatim, in negligence, breach of implied warranty and strict tort liability. The court directed a verdict in favor of that defendant on the fourth count, alleging breach of an implied warranty, from which an appeal has not been pursued. The jury returned a verdict for both defendants on all counts and the court denied a motion to set aside the verdict. The plaintiff appeals from the judgment rendered on the verdict, assigning error in the denial of his motion to set aside the verdict because it was not supported by the evidence, in refusing to charge as requested and in charging that contributory negligence was a defense to the plaintiff's claims of breach of implied warranty as to the hospital.

The defendant Hospital of St. Raphael denied the allegations that an alleged defective crutch was sold by it to the plaintiff; that there was a breach of an implied warranty; that the plaintiff was injured 'as a direct and proximate result of the breach of warranty' alleged; and that the plaintiff gave due notice to the hospital of the alleged breach of warranty. The hospital further, in addition to defending on those issues, alleged, by way of special defense, that the plaintiff was negligent in several respects and that his injuries and damages were proximately caused by his own negligence. A special defense of charitable immunity was ruled out of the case by the trial court and that ruling does not concern us.

The defendant Calley & Currier, Inc., denied the allegations: that the plaintiff's injuries were the direct and proximate result of its negligence; that the plaintiff gave due notice to the defendant of its alleged breach of warranty; and that it was strictly liable in damages to the plaintiff. In addition, that defendant pleaded special defenses of contributory negligence and assumption of risk, claiming that the plaintiff assumed the risk of his alleged injuries and damages because of his failure to check and inspect the crutches to make sure they were adjusted to the proper height and that the wing nut had been tightly screwed on before using.

The plaintiff offered evidence to prove the following facts: He entered the Hospital of St. Raphael on July 10, 1965, for surgery on his right knee. After the surgery his doctor ordered crutches while he was convalescing at the hospital. On July 15 he was provided with crutches by a hospital orderly. They were sold to him by the hospital for his use while in the hospital. When he used the crutches for the first time at the hospital the handle of one crutch collapsed, causing him to fall and sustain injuries necessitating further surgery. The fall was caused by the collapse of the handle of one of the crutches when a bolt and a wing nut fixing the handle to the crutch parted. The plaintiff also offered evidence to show that the crutches were defective when sold to him by the defendant hospital, and were defectively and negligently designed and manufactured by the defendant, Calley & Currier, Inc.

There was evidence which the defendant hospital offered, or on which it relied, to prove the following facts: The plaintiff, on the advice of his physician entered the hospital for an operation on his right knee. Several days after the operation and while the plaintiff was using a wheelchair to get about, crutches were ordered for him which were manufactured by Calley & Currier, Inc., and were provided by the hospital as part of its service to him. The crutches were given to him by an orderly, who demonstrated their use. Following the alleged incident, the crutches were taken from the plaintiff and he did not see them again for about an hour. They were returned to him and he was given instruction in their proper use. He noticed, when they were returned to him, that the nut and bolt in the affected crutch had been replaced. He never saw the original nut and bolt again. Thereafter, whenever necessary, he used the crutches without difficulty.

In the course of the trial, the plaintiff offered in evidence the hospital record for his first admission during which the accident allegedly occurred. He also offered the reports of his treating physician, one Maiorano, who had since died. The hospital records stated that the plaintiff had twisted his knee getting out of bed and had had an uneventful postoperative course but it said nothing of an accident involving crutches. Maiorano's report of September 30, 1965, stated that the plaintiff had 'slipped on his crutches' while at the hospital. In his earlier report of August 2, 1965, however, he made no mention of such an event and, with reference to the plaintiff's operation and recuperation, said 'there was no evidece of any untoward results.' The plaintiff offered Frederick J. Lorinser, Jr., to testify to defective design and manufacture of the nut and bolt on the crutch, based on a visual inspection made by him only a month or so before the trial. H. Thomas Urie, the president of Calley & Currier, Inc., testified relative to the safety of the crutches and the method of manufacture and testing, in contradiction to the claims of the plaintiff in this regard. The hospital offered evidence of contributory negligence by the plaintiff; it denied that it was in the business of selling crutches, that there had been a sale in this instance, that there had been timely and reasonable notice given to it and that the crutches were defective.

There was evidence which the defendant Calley & Currier, Inc., offered, or on which it relied, to prove the following: The plaintiff was admitted to the defendant hospital for an operation on his right knee, which was performed on Monday. The following Thursday, for a charge of $5.75 or $6, the hospital supplied the plaintiff with crutches which were manufactured by Calley & Currier, Inc., in December, 1964. The handles on the crutches given to the plaintiff were at the top level or top holes. The defendant Calley & Currier, Inc., made no direct sales of any crutches to the hospital, nor did it ever send it a copy of instructions for the assembly of the crutches. The crutches supplied to the plaintiff in the hospital were not in the same condition as when they were sent out from the plant of the manufacturer.

After the crutch collapsed, the plaintiff gave the crutches to someone who took them away for about an hour. When they were returned, the handles were adjusted in the plaintiff's presence to the second level or hole; all the nuts were tightened up; and a new bolt and wing nut had been placed in the handle. The plaintiff never again saw the original bolt and wing nut which were in the crutch at the time of his fall. The plaintiff was then given instructions 'for 10 to 15 minutes' on how to get in and out of the wheelchair, in and out of bed and how to use the crutches. Since his fall the plaintiff has been able to use the crutches without any difficulty and has never had any occasion to make any adjustments on the crutches.

Extensive strenght tests are performed on Calley & Currier crutches at the University of New Hampshire and during such tests none of the bolts have ever stripped. The size of the handle bolt makes no difference in the strength of the crutch. During the various stages of the manufacturing process, employees of Calley & Currier, Inc., check to make sure that the wing nuts are properly tightened.

Mr. Lorinser, called by the plaintiff as an expert safety witness, rendered an opinion concerning the crutches based on only a visual examination of the crutches, a reading of the deposition of the plaintiff and consultation with his partner. He first examined the crutches in April, 1970. He made no scientific tests on the bolt. He did not know whether the wing nut and bolt of the crutch he examined in April, 1970, were the same parts of the crutch involved in the plaintiff's fall in July, 1965. His opinion was that the impressions or marks at the top holes of the crutch indicated that the wing nut had been placed improperly when it was used on the top holes or notches.

It is apparent, from this limited recitation of some of the evidence which was relied on by the parties, that the essentail and material allegations of the plaintiff's complaint were strenuously and hotly contested; and that the defendants vigorously disputed the testimony of the plaintiff's witnesses in many respects, by virtue of cross-examination of those witnesses. In a civil action the general burden of proof rests on the plaintiff, and when an answer denies...