McKinley v. Slenderella Systems of Camden, N. J., Inc., A--506

• Citation: 88 A.L.R.2d 1101,63 N.J.Super. 571,165 A.2d 207
• Decision Date: 04 November 1960
• Docket Number: No. A--506,A--506
• Parties: , 88 A.L.R.2d 1101 Dorothea McKINLEY, Plaintiff-Appellant, v. SLENDERELLA SYSTEMS OF CAMDEN, N.J., INC., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 571

63 N.J.Super. 571

165 A.2d 207, 88 A.L.R.2d 1101

Dorothea McKINLEY, Plaintiff-Appellant, v. SLENDERELLA SYSTEMS OF CAMDEN, N.J., INC., Defendant-Respondent.

No. A--506.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 26, 1960.

Decided Nov. 4, 1960.

H. Hurlburt Tomlin, Camden, for appellant.

S. P. McCord, Jr., Camden, for respondent (Starr, Summerill & Davis, Camden, attorneys).

Before Judges GOLDMANN, FREUND and KILKENNY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiff brought a County Court action to recover damages for personal injuries allegedly sustained through the negligence of defendant, a reducing salon, while taking its course of 'Slenderella' treatments. Defendant's motion for dismissal made at the close of the entire case was held in abeyance by the trial judge for later determination, R.R. 4:51--2; he sent the case to the jury, and it returned a unanimous verdict of $25,000. An accordant judgment was entered. Defendant then moved for a new trial on the usual grounds that the verdict was against the weight of the evidence and the result of passion, prejudice, mistake or partiality. After hearing argument the trial judge rendered an opinion in which he held there had been no negligence on defendant's part, it had not engaged in the practice of medicine, and the damages awarded were excessive. The matter, he said, should not have been submitted to the jury in the first instance. He thereupon entered an order granting defendant's motion for judgment and awarded judgment of no cause for action against plaintiff, with costs, because the court was 'satisfied that the verdict was excessive, and the result of prejudice, partiality, passion or mistake and, also, that the motions of the defendant for an involuntary dismissal and judgment should have been granted.' The final paragraph of the order recited that

'IF, FOR ANY REASON, this judgment is disturbed or reversed, IT IS ORDERED that a new trial be had as to all issues, unless the defendant is willing to pay and the plaintiff is willing to accept the sum of $10,000.'

This appeal followed.

I.

Plaintiff, a 51-year-old secretary, learned of defendant's program, designed for weight loss, improvement of posture and figure, and stimulation of circulation, through newspaper advertisements and radio and television commercials. She called at its Haddonfield office on March 28, 1957, was given a lengthy talk, a courtesy treatment on the Slenderella machine, and a booklet entitled 'The Slenderella Story.' She then signed a contract to pay $100 for a course of 50 treatments. The contract contained a recital that defendant relied upon plaintiff's representations that she was in good health and not pregnant, and that she could undertake and complete the Slenderella program outlined. Relying on this representation, defendant made no physical examination of her.

The treatments, which plaintiff normally took twice a week, required her to lie stretched out on a table about 18 inches wide and 6 feet long, with her shoulder blades resting on two oscillating pads and her arms extended to grasp a bar above her head. The pads would oscillate simultaneously about 7 1/2 minutes and then alternately for a like period. The entire table would then oscillate for another 4 minutes. Thereafter plaintiff's position would be shifted so that her buttocks rested on the pads, and the entire cycle would be repeated.

Plaintiff received 24 treatments from March 28 through July 16, 1957. She testified that after the third or fourth she began to experience 'great soreness' in her back. She reported this to the attendant, who supplied her with a sponge rubber pad to place under her hips during that phase of the treatment, at the same time urging that she try to get along without the pad because 'there was absolutely no harm to these treatments and in fact they would be of great help' to her. Plaintiff had to ask for this pad at subsequent treatments, but after three or four times discontinued using it although she felt it gave her some relief. On each occasion that she asked for the pad she was told, 'Oh, this will do you a lot of good instead of harm and certainly won't bother you without the pad. You should try to do without the pad. It would be much more beneficial.'

Plaintiff said she stopped taking the treatments in mid-July because of her vacation and a subsequent family illness. In her direct testimony she stated that within two or three days after discontinuing the treatments the soreness in her back disappeared. (However, the history she gave her personal physician, Dr. Luigi Principato, was that she experienced severe pain in September.) Plaintiff resumed treatments on January 17, 1958. The back soreness recurred after the second or third visit to defendant's salon. When she told the attendant about this, the reply was that 'this absolutely could not do me any harm, that it was very good for me, on the contrary.' Plaintiff took one more treatment, on January 28, and then cancelled all her February appointments. She was experiencing continuous pain in her back. The condition became so severe that she phoned Dr. Principato on February 22, with the result that he had her admitted to a Camden hospital and placed in traction. Her physician called in an orthopedic surgeon, Dr. Haines, for consultation, and the latter then took over. Plaintiff remained in the hospital until March 8, when she returned home. Dr. Haines prescribed a heavy spinal support garment, and later a modified back brace. Plaintiff returned to work on a full-time basis within about three weeks from her return home.

Mention should also be made of a letter received by plaintiff from defendant's manager, in reply to one she had written on February 21 telling of the difficulty she was having with her back and apparently asking for a refund. The manager wrote, in part: 'As I explained on the telephone there is no way in which a Slenderella treatment can injure your body. Refunds of money on a Slenderella course are not made, but there is no time limit on taking the treatments if you care to resume them at a future date.'

At the time of the trial plaintiff testified that the only limitations on her activity were that she had to give up using a lawn mower, could pull weeds for only 10 or 15 minutes, and could do ironing for only half an hour. She had some discomfort while typing at the office.

Dr. Principato testified that plaintiff had a preexisting condition known as lumbar lordosis, an accentuation of the back curve, and that the Slenderella treatments had definitely magnified her condition into a 'ligamentous disorder of the lumbosacral joint.' Dr. Haines, in answer to a comprehensive hypothetical question incorporating his own experience with a Slenderella treatment on a machine similar to that used by plaintiff, was of the opinion that plaintiff's back trouble was a direct result of her treatments and that she had sustained an acute sprain of the ligaments of the spine. Her lordosis was not responsible for her present difficulty but simply made it more difficult to relieve her of her complaint. It was his opinion that plaintiff would probably continue to have difficulty with her back for the rest of her life, would require support, and be restricted in any activity involving extensive bending. Defendant's medical expert, Dr. Jordan, an orthopedic surgeon, found that X-rays revealed that plaintiff had a preexisting degenerative arthritis between the fifth lumbar and first sacral vertebrae. He was of the opinion that plaintiff had sustained an 'acute irritation' of the arthritic process as a result of the Slenderella treatments. He thought that 'there must have been some lighting up character' to the treatments plaintiff underwent. His prognosis was that she would do well in the future 'as long as she continues her activities along the present line. If she would carry out strenuous activity, I think she could expect exacerbation of her back pain.'

In her complaint and at pretrial plaintiff asserted both negligence and breach of warranty, express and implied, on defendant's part. She contended that defendant was negligent in that it (1) failed to have an efficient mechanical device or devices; (2) failed properly to examine her before administering the Slenderella treatments; (3) failed to anticipate that use of the mechanical device employed in giving the treatments could cause her injury; (4) negligently continued administration of the treatments after defendant or its representatives knew or should have known of their harmful effect upon her; and (5) failed to warn her of the harmful propensities of the Slenderella treatments when defendant knew or should have known of them. Defendant's answer denied negligence or any express or implied warranty, and raised the defenses of contributory negligence and assumption of risk. Plaintiff's case was tried solely upon the theory of negligence.

On this appeal plaintiff argues that the jury verdict was not against the weight of the evidence or excessive, so that the trial court erred in setting aside the verdict and judgment in her favor and granting defendant's motion for judgment. In essence, she claims there was sufficient evidence to establish a breach of duty owing her by defendant; that defendant was negligent in the several aspects mentioned in the preceding paragraph; and that this negligence proximately brought on her back condition.

II

Negligence has been defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. 2 Restatement, Torts, § 282, p. 738 (1934); Harpell v. Public Service Coord. Transport, 20 N.J. 309, 316, 120 A.2d 43 (1956). In the field of negligence we compare defendant's conduct with that which the hypothetical person of reasonable vigilance, caution and prudence would have exercised in the same or similar factual...