Hughes v. Children's Clinic, P. A.

• Decision Date: 07 September 1977
• Docket Number: No. 20506,20506
• Citation: 237 S.E.2d 753,269 S.C. 389
• Parties: Mark HUGHES, a minor under the age of 14 years, by his Guardian ad Litem, Judy Hughes, Respondent, v. The CHILDREN'S CLINIC, P. A., Appellant.
• Court: South Carolina Supreme Court

Page 753

237 S.E.2d 753

269 S.C. 389

Mark HUGHES, a minor under the age of 14 years, by his Guardian ad Litem, Judy Hughes, Respondent, v. The CHILDREN'S CLINIC, P. A., Appellant.

No. 20506.

Supreme Court of South Carolina.

Sept. 7, 1977.

J. D. Todd, Jr., and James H. Watson, Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Danny E. Allen of Moore, Swofford & Turnipseed, Spartanburg, for respondent.

RHODES, Justice:

In this appeal we are asked to set aside the verdict rendered for the minor plaintiff, Mark Hughes, for injuries he sustained when he fainted and fell backward into a mirror on the defendant's premises. The defendant maintains that the evidence was insufficient to support the verdict and moved for a directed verdict and for judgment n.o.v. These motions were denied by the trial judge. Additionally, the defendant alleges that numerous prejudicial errors occurred during the trial of this case, necessitating a new trial. For the reasons set forth herein, we reverse the judgment with respect only to the defendant's motion for a new trial nisi and remand for reconsideration of this issue.

On March 20, 1974, Mrs. Judy Hughes took her son Mark to the office of The Children's Clinic, P. A., Spartanburg pediatricians, for treatment of an infection in Mark's nose and throat. Mark was seven years old at the time of this visit to the defendant's office. As a result of an examination, Dr. Clarence C. Lyles, the examining physician and one of the partners in the defendant association, injected Mark with 600,000 units of CR Bicillin (long acting penicillin). During the course of a conversation between Mrs. Hughes and Dr. Lyles in the treatment room, it was determined that Mark was overdue for a complete physical examination. Consequently, Mrs. Hughes and Mark left the treatment room and went to the receptionist's desk for the purpose of paying their bill and to make an appointment for Mark at a future date.

When Mrs. Hughes and Mark arrived in the receptionist's area, they found one or two mothers at the desk ahead of them and, consequently, took their place in line. Mrs. Hughes was generally facing the receptionist's desk but was momentarily looking to her right at a crying baby in the waiting room. Mark was standing at Mrs. Hughes' left side and was physically touching her, but he was not holding her hand.

Almost immediately after mother and son had taken their place in line, Mark fainted and fell backward into a mirror which was hung on the wall opposite the receptionist's desk. It was a convex mirror which had been installed on the premises in 1962 after being presented to the defendant association as a gift. It was a typical fun-house mirror, curved outward so as to give the viewer a comically distorted image or reflection of himself.

When Mark's head struck the mirror, the glass shattered. As a result, Mark's left eye and cheek were cut. The testimony of certain of the plaintiff's witnesses showed that the damage to the boy's eye was severe and of a permanent nature.

The plaintiff alleged in his complaint that he received the injuries aforementioned as a result of the negligence of the defendant association in two particulars: (1) because the defendant failed to keep the plaintiff under proper and reasonable supervision and observation following the penicillin injection and that, as a result, the plaintiff fainted on the defendant's premises; and (2) because the defendant had carelessly placed in its office a breakable wall mirror, which constituted an inherently dangerous condition under the circumstances, and that as a result of the plaintiff's fainting and falling into the mirror, it broke and pieces of the shattered glass damaged the plaintiff's eye and cheek.

The answer of the defendant was a general denial of the material allegations of the complaint. Thus, the issues made by the pleadings were whether the defendant was negligent in either or both of the particulars alleged and, if so, whether such negligence was a proximate cause of the plaintiff's injuries.

The case was tried before a jury in Spartanburg at the April 1976 term of the Court of Common Pleas. The jury returned a verdict for the plaintiff for $75,000 "against the Clinic only". That is, the form of the verdict reflected that liability was attributed to negligence in the installation and maintenance of the mirror on the premises. The defendant association was exonerated of the allegation of lack of adequate care and supervision on the part of the treating physician.

In addition to the motions mentioned above, the defendant, after the verdict was returned, moved for a new trial or a new trial nisi. Upon denial of all of these motions, this appeal followed.

QUESTION I

Did the placing of the convex wall mirror in the office of the Children's Clinic, P. A., constitute an inherently dangerous condition and foreseeable risk of harm to the plaintiff?

The convex wall mirror involved in this case was made of ordinary double-strength window pane glass, one-eighth (1/8) of an inch thick. It was the type of glass customarily used in china cabinets as found in many homes throughout this country. The glass had been curved outward by a heating process. It was then mirrored with a coating of silver nitrate sprayed on the back of it so that it would produce a reflection. As the plaintiff's glass expert testified, the properties of the glass were changed through the heating process. The heating caused the glass to become more susceptible to breakage because it had been stressed and strained.

After the glass was mirrored, it was placed inside a rectangular oak frame. The mirror in its frame was screwed into the wall directly across from the receptionist's desk in the defendant's office. The mirror was located in an area where sick and weak children passed while going to and returning from the defendant's treatment rooms.

The mirror was intentionally placed on the wall for the purpose of amusing the Clinic's children-patients. The mirror protruded from its oak frame on the wall, and it was hung only six (6) inches above the floor. The defendant, however, took no precautions after placing the convex mirror in its particular location to protect the children-patients of the Clinic or to warn them or their parents that the mirror could break. The members of the defendant association never examined the mirror to determine whether it was susceptible to easy breakage as they could have done, according to the plaintiff's glass expert.

The plaintiff, through the testimony of his glass expert, the photographic exhibits showing the former location of the mirror, and the pieces of the broken glass, demonstrated to the satisfaction of the jury that the mirror was a dangerous condition under the circumstances. The expert witness testified that the glass of the convex mirror had absolutely no safety factor in it. The mirror, when hung, was located in an area where it could easily have been broken.

Undisputed is the fact that Mark Hughes was an invitee on the defendant's premises. The defendant, therefore, owed the plaintiff the duty of exercising reasonable or ordinary care for his safety and was liable for any injury resulting from the breach of this duty. This degree of care must be commensurate with the particular circumstances involved, including the age and capacity of the invitee. This duty is an active or affirmative duty. It includes refraining from any act which may make the invitee's use of the premises dangerous or result in injury to him. 65 C.J.S. Negligence § 63(45). Moreover, it has been stated that . . .

(I)t is unessential that the precise manner in which the injuries might have occurred, or where sustained, be foreseeable It was certainly foreseeable that the mirror, if shattered or broken by one of the children-patients, could cause severe injury to the child. The evidence shows that the mirror was unsafe and created an unreasonable risk of harm to the defendant's patients, including the plaintiff. The jury was justified in concluding under the particular facts and circumstances of this case that the mirror was an inherently dangerous condition on the defendant's premises.

or foreseen. It is sufficient that there is a reasonable generalized gamut of greater than ordinary dangers of injury and that the sustaining of the injury was within this range. . . . It was, therefore, a jury question whether the defendant had provided reasonably safe premises, and a reasonably safe installation upon the premises, for the use of [269 S.C. 398] the child invitee, . . . Orr v. First National Stores, Inc., 280 A.2d 785 (Me.1971), 50 A.L.R.3d 1202, 1213. (emphasis supplied)

QUESTION II

Was the presence of the convex wall mirror on the defendant's premises a proximate cause of the plaintiff's injuries?

With regard to liability for a negligent act, proximate cause is the efficient, or direct, cause the thing which brings about the injuries complained of. Burnette v. Augusta Coca-Cola Bottling Co., 157 S.C. 359, 154 S.E. 645 (1930). Negligence is not actionable unless it is a proximate cause of the injuries, and it may be deemed a proximate cause only when without such negligence the injury would not have occurred or could have been avoided. Gunnels v. Roach, 243 S.C. 248, 133 S.E.2d 757 (1963).

When we speak of proximate cause, we are not referring to the "sole cause". In order to establish actionable negligence, the plaintiff is required only to prove that the negligence on the part of the defendant was at least one of the proximate, concurring causes of his injury. It is generally for the jury to say whether the defendant's negligence was a concurring, proximate cause of the plaintiff's injuries. Grooms v. Minute-Maid, 4 Cir., 267 F.2d 541 (1959).

The presence of the mirror on the premises was not merely a condition involved in the plaintiff's receiving his injuries, as contended by the defendant. The plaintiff's...