McPherson v. High Point Memorial Hospital, Inc.

• Citation: 258 S.E.2d 410,43 N.C.App. 164
• Decision Date: 02 October 1979
• Docket Number: No. 7919SC29,7919SC29
• Parties: Debra Sue Evers McPHERSON, Plaintiff, v. HIGH POINT MEMORIAL HOSPITAL, INC., Defendant, v. FEDERAL SIGNAL CORPORATION, Third Party Defendant.
• Court: Court of Appeal of North Carolina (US)

Page 410

258 S.E.2d 410

43 N.C.App. 164

Debra Sue Evers McPHERSON, Plaintiff, v. HIGH POINT MEMORIAL HOSPITAL, INC., Defendant, v. FEDERAL SIGNAL CORPORATION, Third Party Defendant.

No. 7919SC29.

Court of Appeals of North Carolina.

Oct. 2, 1979.

Ottway Burton, Asheboro, for plaintiff-appellant.

Henson & Donahue by Perry C. Henson, Greensboro, for defendant-appellee High Point Memorial Hospital, Inc.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter, Winston-Salem, for defendant-appellee Federal Signal Corporation.

HEDRICK, Judge.

Although plaintiff does not argue the question in her brief, this case squarely raises the issue of whether the doctrine of Res ipsa loquitur will apply to carry plaintiff's case to the jury. This evidentiary principle is grounded in the superior logic of ordinary human experience and operates to permit an inference of negligence from the very happening of the incident itself. 2 Stansbury's N.C. Evidence, Burden of Proof and Presumptions § 227 (Brandis rev. 1973). In Newton v. Texas Co., 180 N.C. 561, 567, 105 S.E. 433, 436 (1920), our Supreme Court, in what has become a classic statement of the rule, described it this way:

(W)hen a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those, who have the management, use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.

The reason for the rule is one of necessity. That is, when the circumstances logically suggest a probability of negligence, yet the necessary evidence to prove it is absent or unavailable, it is only just that plaintiff be permitted to have a jury decide the question. Obviously, then, if there is concrete evidence, direct or circumstantial, of defendant's negligence, plaintiff does not need the benefit of the Res ipsa rule. Thus, it has been held that, when the evidence is sufficient to disclose the cause of the accident, Res ipsa does not apply, since, in such a case, nothing is left to inference. Benton v. North Carolina Public-Service Corp., 165 N.C. 354, 81 S.E. 448 (1914); Colclough v. Great Atlantic & Pacific Tea Co., Inc., 2 N.C.App. 504, 163 S.E.2d 418 (1968). See also Stansbury, Supra ; 58 Am.Jur.2d, Negligence § 477 (1971).

We recognize that the Res ipsa doctrine is not only difficult to articulate, but, even more frequently, it is troublesome to apply. One analytical aid is to identify those situations in which the rule does not arise. In North Carolina, as elsewhere, the following instances preclude the applicability of Res ipsa :

(1) Where all the facts are known and testified to;

(2) Where the evidence establishes that more than one inference can be drawn as to the cause of the injury;

(3) Where the existence of negligence is not the more reasonable probability;

(4) Where the matter is purely a question of conjecture;

(5) Where the accident was due to an act of God or the tortious act of a stranger;

(6) Where the accident which results in injury is defined by law;

(7) Where the injury-producing instrumentality is not under the exclusive control and management of the defendant.

9 Strong's N.C. Index 3d, Negligence § 6.1 (1977).

We do not believe that the facts of the instant case bring it within any of these categories so as to forthwith rule out the applicability of Res ipsa. Accordingly, we turn to a consideration of the relevant cases wherein the rule of Res ipsa has been held properly available to take the case to the jury.

In Young v. Anchor Co., Inc., 239 N.C. 288, 79 S.E.2d 785 (1954), a case very much on point with the case at bar, plaintiff undertook to use the escalator in defendant's store. Shortly after the escalator began its ascent, "there was a sudden jerk, a stop, and a quick move forward which . . . threw (plaintiff) on her side and caused her to fall . . . ." Id. at 289, 79 S.E.2d at 786. Defendant's evidence showed that the escalator was in general use in department stores, and that it was "properly constructed, maintained, inspected and operated." Id., 79 S.E.2d at 787. Nevertheless, our Supreme Court affirmed a jury verdict for plaintiff. After noting that defendant would have been entitled to a directed verdict unless the facts of the case called for the application of Res ipsa, the Court said:

The mechanical device known as an escalator, which the defendant furnished to its customers and invitees . . ., was installed by the defendant and was under its exclusive management and control, imposing upon it the continuous duty of inspection and maintenance, and due care in its operation, and the facts as testified by plaintiff of the sudden jerk, stoppage and unusual movement on the occasion alleged was such as to raise the inference that the accident complained of would not have occurred unless there had been negligent failure to inspect and maintain.

Id. at 291, 79 S.E.2d 788.

Similarly, in Page v. Sloan, 12 N.C.App. 433, 183 S.E.2d 813 (1971), Aff'd, 281 N.C. 697, 190 S.E.2d 189 (1972), a case in which an electric water heater in a motel exploded and killed a motel guest, it was held that the doctrine of Res ipsa loquitur precluded summary judgment for defendant where the evidence established that the heater was under the exclusive management and control of the motel owners and that they had undertaken the maintenance of it. Observing that "(i)t is a matter of common knowledge that electric water heaters . . . (W)hen in a safe condition and properly managed, . . . do not usually explode," Id. at 438, 183 S.E.2d at 816, the court concluded: "(T)herefore, in the absence of explanation, the explosion...