Malvicini v. Stratfield Motor Hotel, Inc.

• Decision Date: 08 March 1988
• Docket Number: No. 13094,13094
• Citation: 538 A.2d 690,206 Conn. 439
• Court: Connecticut Supreme Court
• Parties: John MALVICINI v. STRATFIELD MOTOR HOTEL, INC., et al.

Page 690

538 A.2d 690

206 Conn. 439

John MALVICINI v. STRATFIELD MOTOR HOTEL, INC., et al.

No. 13094.

Supreme Court of Connecticut.

Argued Dec. 4, 1987.

Decided March 8, 1988.

Raymond F. Ross, Westport, for appellant (plaintiff).

Peter J. Dauk, with whom, on the brief, were Lesley Torsiello and Sheila Tierney, Bridgeport, for appellee (named defendant).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff, John Malvicini, appeals from a judgment in favor of the defendants, Stratfield Motor Hotel, Inc., and United NationalCorporation, in an action for personal injuries allegedly suffered by the plaintiff when the water in the defendants' shower suddenly turned hot. The sole issue in this appeal is whether the trial court committed reversible error when it refused to charge the jury, as requested by the plaintiff, with respect to the doctrine of res ipsa loquitur.

The jury could reasonably have found the following facts. The plaintiff checked into the defendant Stratfield Motor Hotel, Inc., on July 6, 1977, at about 9 p.m. Before retiring that night, he took a shower. The shower was in a tub enclosed with a glass or plastic door. He awakened the next day, went into the bathroom, turned on the shower and "regulated" or "adjusted" the water. He then went to the toilet. A minute or two after he had first turned on the water he got into the shower. It is his standard procedure "all the time" to turn on the shower, adjust it, feel the water and then get in. Once he got into the shower, he did not make any adjustment to the knobs at all. At that time, the water was "pleasant," he "soaped up," and after "about a minute or two" he heard a "pssst" sound and he was hit with steaming hot water. He fell at least twice in the tub, hitting various parts of his body. Thereafter, having apparently opened the shower door, he found himself on the floor of the bathroom. There was a hole in the shower door and the plaintiff had "all kinds of chips on [himself]."

The plaintiff alleged that he had received first degree burns on his chest and neck, a concussion and three herniated discs. He also testified on direct examination that "there were no strips, no skid strips, no mat, no nothing," just a shower and bathtub that was enclosed in glass on the morning of his alleged accident. On cross-examination, he testified that the night before, when he had taken his shower, there had been no skid mat on the floor and that there had been no skid strips in the tub, "but there was no problem."

The defendants' front office manager, Agnes Lowery, who was on duty at the desk when the plaintiff checked out, testified that after he complained about the general quality of the bathroom, she immediately went up to the plaintiff's room with one of her fellow workers ¹ and "tried everything and everything worked." The manager "turned on all the faucets [herself]," including checking the water in the shower room which she found "normal." She also said that at that time she "definitely" had observed safety strips in the tub where the shower was located. She said that "is one of the things we always looked for every morning." Lowery further said that the defendants had been in the process of renovating the hotel in connection with a sale, that in the renovation all the strips had been replaced "and [that] section had just been opened shortly before [the plaintiff] came to us."

The jury found for the defendants and the plaintiff appealed, claiming that the trial court erred in refusing to charge the jury on the doctrine of res ipsa loquitur. The plaintiff filed a request to charge on res ipsa loquitur and took a timely exception. We find no error.

The doctrine of res ipsa loquitur, literally "the thing speaks for itself," permits a jury to infer negligence when no direct evidence of negligence has been introduced. This doctrine was discussed by this court in the leading case of Stebel v. Connecticut Co., 90 Conn. 24, 26, 96 A. 171 (1915), where we held that "the doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred." Schurgast v. Schumann, 156 Conn. 471, 479, 242 A.2d 695 (1968). "Where common experience has demonstrated that no injury would ordinarily result from a situation, condition or apparatus unless there was careless construction, inspection or user, and the construction, inspection and user were all in the control of the party charged with neglect, no voluntary action of the party injured being involved, common sense permits an inference of negligence from proof of the injury and the physical agency inflicting it, without requiring proof of facts pointing to the responsible human cause. The result is simply that such proof, without proof of further facts tending to show negligence, satisfies the plaintiff's duty of producing evidence sufficient to permit the trier, whether court or jury, to draw an inference of negligence. Ruerat v. Stevens, 113 Conn. 333, 337, 155 A. 219 [1931]. The doctrine permits, but does not compel, such an inference. Fogarty v. M.J. Beuchler & Son, Inc., 124 Conn. 325 330, 199 A. 550 [1938]. The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 [1936]. It is but a specific application of the general principle that negligence can be proved by circumstantial evidence." Lowman v. Housing Authority, 150 Conn. 665, 670, 192 A.2d 883 (1963); see generally W. Prosser & W.P. Keeton, Torts (5th Ed.1984) § 349; F. Harper, F. James & O. Gray, Torts (1986) §§ 19.5 through 19.12.

"We have frequently stated the three conditions under which the doctrine might apply: (1) The situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user. (2) Both inspection and user must have been at the time of the injury in the control of the party charged with neglect. (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured." Schurgast v. Schumann, supra; Briganti v. Connecticut Co., 119 Conn. 316, 320, 175 A. 679 (1934); Stebel v. Connecticut Co., supra, 90 Conn. at 26, 96 A. 171; 4 F. Harper, F. James & O. Gray, supra. Whether the doctrine applies in a given case is a question of law for the court. See Ryan v. Lilley Co., supra, 121 Conn. at 31, 138 A. 2; Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 449, 207 N.E.2d 305 (1965); Kaufman v. Fisher, 230 Or. 626, 639, 371 P.2d 948 (1962); Fleege v. Cimpl, 305 N.W.2d 409, 413 (S.D.1981).

The plaintiff pleaded and claims to have proved the conditions required for invocation of the doctrine of res ipsa loquitur. He maintains that the first condition was fulfilled because water from a shower does not ordinarily become scalding hot in the absence of someone's negligence. A number of jurisdictions agree. See, e.g., Terrell v. Lincoln Motel, Inc., 183 N.J.Super. 55, 60, 443 A.2d 236 (1982); Wolfe v. Chateau Renaissance, 141 N.J.Super. 59, 65, 357 A.2d 282 (1976); Watson v. Compagnie Generale Transatlantique, 147 Misc. 697, 699, 264 N.Y.S. 570 (1932); Brooks v. Utah Hotel Co., 108 Utah 220, 224, 159 P.2d 127 (1945); see generally annot., 93 A.L.R.3d 247, 279. The defendants argue that the weight of the evidence contradicting the plaintiff's claims rebuts this first condition and precludes the invocation of res ipsa loquitur. This argument, however, is actually an attack upon the plaintiff's version of the incident, and does not relate to whether, as a matter of common experience, it can be said that a shower does not ordinarily turn suddenly hot in the absence of negligence. We agree with the plaintiff that the first condition for the application of res ipsa loquitur is fairly met.

The third condition required in Connecticut is that the injury must have occurred irrespective of any voluntary action by the plaintiff. The defendants' brief does not contest this requirement. One noted treatise observes that "[w]hat is needed here is that [the] plaintiff's own negligence, along with that of anyone else for whom [the] defendant is not responsible, be eliminated as to the principal cause of the accident, so as to complete the basis for an inference that the negligence of which the thing speaks for itself is probably that of the defendant." 4 F. Harper, F. James & O. Gray, supra, § 19.8, p. 58. If, for example, the water in the shower had suddenly turned hot because of a defect in the boiler, shower equipment or plumbing system, such a circumstance would not have been attributable to the plaintiff's act of negligence. It is also worthy of note that in a jurisdiction that utilizes the doctrine of comparative negligence, such as Connecticut, the emerging rule is that any negligence by the plaintiff should not bar liability but should merely reduce damages. See, e.g., Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo.1980); Watzig v. Tobin, 292 Or. 645, 650 n. 4, 642 P.2d 651 (1982); Turtenwald v. Aetna Casualty & Surety Co., 55 Wis.2d 659, 665, 201 N.W.2d 1 (1972). Commentators have suggested that the doctrine of res ipsa loquitur should survive under Connecticut's comparative negligence law. See G. Saden, "Comparative Negligence Adopted in Connecticut," 47 Conn. B.J. 416, 426 (1973); F. James, "Connecticut's Comparative Negligence Statute: An Analysis of Some Problems," 6 Conn.L.Rev. 207, 215 (1973-74).

The plaintiff's claim of the applicability of res ipsa loquitur fails, however, because...