De Martini v. Alexander Sanitarium, Inc.

• Decision Date: 24 May 1961
• Citation: 13 Cal.Rptr. 564,91 A.L.R.2d 383,192 Cal.App.2d 442
• Court: California Court of Appeals
• Parties: , 91 A.L.R.2d 383 Thaddeus R. DE MARTINI, Plaintiff and Appellant, v. ALEXANDER SANITARIUM, INC., and Annette Alexander, Defendant and Respondent. Civ. 19221.

Page 564

13 Cal.Rptr. 564

192 Cal.App.2d 442, 91 A.L.R.2d 383

Thaddeus R. DE MARTINI, Plaintiff and Appellant, v.ALEXANDER SANITARIUM, INC., and Annette Alexander, Defendant and Respondent.

Civ. 19221.

District Court of Appeal, First District, Division 2, California.

May 24, 1961.

Rehearing Denied June 23, 1961.

Hearing Denied July 19, 1961.

Vernon W. Humber, Charles Molinari, San Francisco, for appellant.

Lamb & Hoge, San Francisco, for respondent.

STONE, Justice pro tem.

Plaintiff, a dentist of 30 years experience, filed an action for damages against defendant, Alexander Sanitarium, Inc., a private hospital specializing in the treatment of the mentally disturbed.While a patient at the hospital, plaintiff was injured by climbing a 6-foot wall surrounding the hospital grounds and jumping down on the other side.The jury brought in a defense verdict and plaintiff appeals from the judgment entered thereon.

Plaintiff had been mentally disturbed for several years and he had seen other psychiatrists before consulting Dr. Harter, who was administering to him at the time of the accident.Dr. Harter diagnosed plaintiff's condition as 'depressive reaction with some question of an underlying schizophrenic reaction' and recommended shock treatment.Plaintiff had previously undergone shock treatments from which he developed a dread of them and an associated dislike for Stanford Hospital where they had been administered.To overcome plaintiff's aversion to the hospital and allay his anxiety toward shock treatments, Dr. Harter suggested the somewhat informal environment at defendant hospital.He particularly recommended the minimum security facility, a cottage with patio and garden privileges, as did the psychiatrists on defendant's staff.A maximum security unit was also available but considered undesirable by the doctors.Plaintiff and his wife inspected the hospital and notified Dr. Harter of their approval.Under conditions of minimum restraint, plaintiff voluntarily entered the hospital and he was free to sign himself out at any time.

A doctor on the staff of defendant hospital gave shock treatments to plaintiff pursuant to the orders of Dr. Harter.In the late afternoon of his 10th day at the hospital, plaintiff and several other patients, with a nurse in attendance, were relaxing in the patio area.The nurse went inside the building to get thermometers and while she was gone, plaintiff placed a stool beside the 6-foot wall, climbed on top and jumped down on the other side, fracturing his ankle.Plaintiff testified that he had no recollection of the occurrence.He had been given a shock treatment the day before but his doctor and the two staff doctors testified that aside from temporary forgetfulness, the electric shock treatment should have caused no ill effects.There was testimony that the treatments should have calmed the plaintiff rather than cause him to impulsively climb over the wall.

Res Ipsa Loquitur

The court gave instructions on the doctrine of res ipsa loquitur and also an instruction that '[t]he mere fact that an accident occurred, considered alone, does not prove that it was caused by the negligence of anyone.'Plaintiff argues that the instructions are conflicting and that reversible error was committed.As plaintiff points out, the giving of similar instructions has been held to constitute reversible error where the doctrine of res ipsa loquitur was applicable as a matter of law (Alarid v. Vanier, 50 Cal.2d 617, 625, 327 P.2d 897;Jensen v. Minard, 44 Cal.2d 325, 329, 282 P.2d 7).The question is discussed by the Supreme Court in an opinion written by Chief Justice Gibson in Guerra v. Handlery Hotels, Inc., 53 Cal.2d 266, 1 Cal.Rptr. 330, and it appears that the error in giving both instructions is reversible when there is a possibility that the 'mere happening' instruction may nullify the inference of negligence intrinsic to res ipsa loquitur.But it does not follow that giving both instructions per se results in reversible error.Mr. Justice Traynor once said: 'The applicability of the doctrine of res ipsa loquitur cannot be determined in the abstract; it depends upon the evidence in each case. * * *'Dierman v. Providence Hospital, 31 Cal.2d 290, 297, 188 P.2d 12, 15.A review of the evidence here reflects unusual facts which make inapplicable the reasons for reversible error expressed in the Alarid v. Vanier and Jensen v. Minard cases, supra.Since plaintiff placed a stool next to the 6-foot wall, climbed on top and jumped down on the other side, injuring himself he would not appear to be entitled to the benefit of res ipsa loquitur.He voluntarily committed the act which caused his injury.Plaintiff, however, testified that he had no recollection of the occurrence and presented medical testimony indicating that his act was an irrational one.If this testimony were believed by the jury, then in our opinion, plaintiff would be entitled to the benefit of res ipsa loquitur.We can see no practical reason for distinguishing between a hospital patient without recollection of the events causing his injuries and an unconscious patient who is clearly entitled to the benefit of the doctrine (Ybarra v. Spangard, 25 Cal.2d 486, 493, 154 P.2d 687, 162 A.L.R. 1258;McDonald v. Foster Memorial Hospital, 170 Cal.App.2d 85, 99, 338 P.2d 607).There is evidence, however, indicating that none of the treatment administered plaintiff, including the electric shock, would have caused loss of memory or his unusual behavior.The evidence raised a question as to whether he was accountable for his actions.The jury had to first resolve the conflicting evidence concerning plaintiff's mental condition and determine whether he was responsible for his own actions.Therefore, under the facts peculiar to this case, it cannot be said that plaintiff was entitled to the benefit of res ipsa loquitur from the mere happening of the accident.

Submitting the applicability of res ipsa loquitur of the jury for its determination when a question of fact is presented was approved in Seneris v. Haas, 45 Cal.2d 811, at page 823, 291 P.2d 915, at page 922, 53 A.L.R.2d 124, wherein the court said:

'* * * we are also of the opinion that the jury, under appropriate instructions, should have been permitted to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur were present.Roberts v. Bank of America, 97 Cal.App.2d 133, 137, 217 P.2d 129.'

The trial court complied with the procedure approved in the Seneris case, and considering all of the instructions in the light of the evidence, we do not see how the jury could have been misled by the instruction quoted earlier concerning the mere happening of the accident.

Contributory Negligence

Plaintiff next contends that he was incapable of negligence as a matter of law and that the jury should have been so instructed.This argument presents a bifurcated attack upon the instructions, urging that the court erred not only in submitting the issue of plaintiff's contributory negligence to the jury, but also by conditioning res ipsa loquitur instructions on plaintiff's accountability for his own actions.We believe the court properly submitted the question of plaintiff's negligence to the jury, although we have found no California cases in point.The reports of other jurisdictions reveal few cases considering the question and they are of little help in determining the issue before us.We learn from Prosser, Torts, 2d ed., that the question is largely unresolved throughout this country.At page 793, Prosser states:

'So far as negligence is concerned, there have been surprisingly few cases, all of which have held the insane person liable for failure to conform to the standard of conduct required of a sane man.One of these at least contains the suggestion that the defendant is not liable where his insanity is not brought on by his own fault.In view of the allowance made for the limited mental capacity of children, in the form of a special standard of conduct applicable to them, it has been contended, with apparent reason, that the lunatic should likewise be held to no higher degree of care than he is capable of exercising.The question may be said to be still an open one in the United States.'

We do have California decisions concerning the mental capacity of persons to execute wills, deeds, contracts and other instruments which parallel the issue before us, and we have many criminal cases discussing the issue of not guilty by reason of insanity.These cases support our conclusion that the issue of contributory negligence of a mentally disturbed person is a question of fact; unless, of course, the evidence discloses that the person whose actions are being judged is completely devoid of reason.If he is so mentally ill that he is incapable of being contributorily negligent, he would be entitled to have the jury so instructed, since his position would be comparable to the child of tender years that is incapable of contributory negligence as a matter of law (Gonzales v. Davis, 197 Cal. 256, 240 P. 16;Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675;Christian v. Goodwin, 188 Cal.App.2d 650, 10 Cal.Rptr. 507).But only in those cases in which the evidence would admit to no other rational conclusion would plaintiff be entitled to have the issue determined as a matter of law.The state of the evidence in this case did not warrant such an instruction.Plaintiff had never been adjudged mentally ill nor had he ever been declared incompetent.He...