Ladd v. Hudson Valley Ambulance Service

• Decision Date: 23 November 1988
• Citation: 142 A.D.2d 17,534 N.Y.S.2d 816
• Parties: Gene E. LADD et al., Respondents, v. HUDSON VALLEY AMBULANCE SERVICE, Defendant and Third-Party Plaintiff-Appellant; Mercy Community Hospital, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 816

534 N.Y.S.2d 816

142 A.D.2d 17

Gene E. LADD et al., Respondents, v. HUDSON VALLEY AMBULANCE SERVICE, Defendant and Third-Party Plaintiff-Appellant Mercy Community Hospital, Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 23, 1988.

Gross, Gross & Gross (Robert M. Cohen, Ballston Lake, of counsel), Liberty, for defendant and third-party plaintiff-appellant.

Bower & Gardner (Howard R. Cohen, of counsel), New York City, for third-party defendant-respondent.

Orseck, Orseck, Greenberg & Waldman (Donald Orseck, of counsel), Liberty, for respondents.

Before MAHONEY, P.J., and KANE, YESAWICH, HARVEY and MERCURE, JJ.

MAHONEY, Presiding Justice.

On March 16, 1984, plaintiff Gene E. Ladd (hereinafter plaintiff), a patient at Mercy Community Hospital in the City of Port Jervis, Orange County, was to be transported to another medical facility for further tests because of the unavailability of technical equipment at Mercy. In furtherance of that purpose, defendant dispatched an ambulance with two State-certified emergency medical technicians (hereinafter EMTs) to Mercy. Upon arrival, the EMTs rolled a mechanical stretcher, sometimes referred to as a gurney, to plaintiff's room and, after adjusting it, instructed plaintiff to mount the stretcher. As soon as plaintiff put his full weight on the stretcher, it immediately collapsed, causing him to fall to the floor and sustain serious injuries.

Thereafter, plaintiff and his wife commenced this negligence action against defendant with plaintiff's wife pleading a cause of action for loss of consortium. Plaintiffs did not plead the doctrine of res ipsa loquitur in either their complaint or their bill of particulars. Following the joinder of issue in the main action, defendant commenced a third-party action against Mercy seeking indemnification or contribution.

At the bifurcated trial, only plaintiff testified in person and the jury heard portions of the examination before trial of defendant's manager and a statement by defendant's two EMTs. After plaintiffs rested, both defendant and Mercy rested without offering any proof. In its instructions, Supreme Court charged general principles of negligence but would not charge res ipsa loquitur despite plaintiffs' several requests. Following the charge, defendant excepted to the court's failure to charge comparative negligence and plaintiffs again requested that the court charge res ipsa loquitur; both requests were denied.

After deliberations, the jury returned a unanimous verdict of no cause of action in favor of defendant. Plaintiffs moved to set aside the verdict and for a directed verdict on the basis of Supreme Court's refusal to charge res ipsa loquitur and that the verdict was against the weight of the evidence. Mercy cross-moved for an order dismissing the third-party complaint. Supreme Court granted plaintiffs' motion, setting aside the jury's verdict and ordering a new trial on the basis that it was error for it not to have charged res ipsa loquitur. ^* This appeal by defendant ensued.

While defendant concedes that a plaintiff who elicits proof of specific acts of negligence, as was done herein, can also seek to use the inference of res ipsa loquitur (Abbott v. Page Airways, 23 N.Y.2d 502, 511, 297 N.Y.S.2d 713, 245 N.E.2d 388), it nonetheless argues that such a plaintiff, as here, could not invoke this doctrine unless he specifically pleaded it in his complaint and/or bill of particulars. We disagree.

The failure to plead res ipsa loquitur does not preclude its application to appropriate facts (Weeden v. Armor Elevator Co., 97 A.D.2d 197, 201-202, 468 N.Y.S.2d 898). This rule is consistent with the observations of the Court of Appeals in Abbott v. Page Airways, supra, 23 N.Y.2d at 512, 297 N.Y.S.2d 713, 245 N.E.2d 388), that:

* * * there can be no logical or reasonable basis for requiring a plaintiff to choose between res ipsa and specific evidence of negligence or for precluding him from relying on res ipsa principles once evidence of negligence [has] been introduced, unless the two alternate modes of proof are fundamentally or inherently inconsistent.

Indeed, the court went on to explain that the only difference between a res ipsa case and the more usual negligence case is that, "among all the possible causes of the injury, those which point to the defendant's negligence are so probable * * * and those which wound exonerate him are so improbable, that it is unnecessary to specify the one that actually led to the occurrence" (id., at 512-513, 297 N.Y.S.2d 713, 245 N.E.2d 388 [emphasis in original] [footnote omitted] ). Accordingly, as long as res ipsa loquitur is not ruled out by the complaint's allegations, there is no reason for a defendant to complain that he was not properly put on notice of the potential applicability of the doctrine. To be sure, defendant was on notice of plaintiffs' intent to rely on the doctrine throughout the trial of this case because plaintiffs requested the charge prior to the selection of the jury.

Defendant's reliance on Holtfoth v. Rochester Gen. Hosp., 304 N.Y. 27, 105 N.E. 610, to support a contrary result is misplaced. It is true that in Holtfoth the Court of Appeals stated that:

The case was tried as one based upon alleged negligence of the defendant hospital in furnishing plaintiff with * * * a wheel chair--which was defective. Thus pleaded and tried, the plaintiff's case does not lend itself to the doctrine of res ipsa loquitur * * * (id., at 31, 105 N.E. 610 [...