Memorial Hospital of South Bend, Inc. v. Scott

• Decision Date: 16 August 1973
• Docket Number: No. 873S158,873S158
• Citation: 261 Ind. 27,300 N.E.2d 50
• Parties: MEMORIAL HOSPITAL OF SOUTH BEND, INC., Appellant (Defendant Below), v. Richard E. SCOTT, Appellee (Plaintiff Below), Justin Keenan, M.D. and Bernard A. Mason, M.D., Appellees (Defendants Below).
• Court: Indiana Supreme Court

Page 50

300 N.E.2d 50

261 Ind. 27

MEMORIAL HOSPITAL OF SOUTH BEND, INC., Appellant (Defendant Below), v. Richard E. SCOTT, Appellee (Plaintiff Below), Justin Keenan, M.D. and Bernard A. Mason, M.D., Appellees

(Defendants Below).

No. 873S158.

Supreme Court of Indiana.

Aug. 16, 1973.

Concurring Opinion Aug. 20, 1973.

[261 Ind. 28]

Roland Obenchain, South Bend, for appellant

J. Chester Allen, Jr., Arthur A. May, South Bend, for appellees.

OPINION ON PETITION TO TRANSFER

HUNTER, Justice. ^*

The instant case involves a negligence action brought against a hospital for injuries sustained by a patient. Plaintiff Scott was severely burned by hot water (140 F.) while he was using a hospital toilet. Plaintiff activated a [261 Ind. 29] bed pan flusher hot water knob (shoulder level) which was located in proximity to the toilet flusher (small of back level) and was inundated by the scalding water. The facts set out below are those found by the trial court in support

of his granting plaintiff's motion to correct error

'FINDINGS IN SUPPORT OF GRANTING OF MOTION TO CORRECT ERROR

'The court grants the motion to correct error and orders a new trial in this cause for the reasons that the verdict with respect to the defendant, Memorial Hospital of South Bend, Inc., was clearly erroneous and against the weight of the evidence and also contrary to and not supported by the evidence.

'With respect to the issue of the negligence of the defendant, appellant, Memorial Hospital, the court finds the defendant hospital was negligent in that it had notice of the dangerous and deceptive controls of the bed pan flushers installed in their hospital. This finding is based upon hospital's knowledge of two prior accidents concerning the inadvertant (sic) activation of the bed pan flusher by patients. One additional incident involved an auxiliary aide of the hospital who was in possession of normal faculties and whose work necessarily involved familiarity with the bathroom facilities. She inadvertantly (sic) turned on the hot water and suffered a reddened arm. That the head nurse reported these incidents and expressed concern over the danger to patients and requested that the handles or controls on the hot water be removed. That the head nurse of the unit was under the impression that all the hot water handles controlling the bed pan flushers in the unit were removed. That in fact such handles were removed in only part of the section, and in rooms 40 through 47 the hot water handles or controls were not removed. The evidence also showed that since the subject accident the hot water handles on the bed pan flushers were removed from all the rooms in the unit.

'There was evidence adduced by the defendant hospital indicating that the hospital facilities were erected and installed pursuant to prevailing standards for hospital construction. There was also evidence that the bed pan flusher controls were installed in various arrangements with the controls being installed on either the left or right of the toilet stool, and that hot water would come out of the flusher [261 Ind. 30] even though the flusher applicance was retracted against the wall behind the stool. The evidence shows that the plaintiff, appellee, used said stool and inadvertantly (sic) turned on the hot water of the bed pan flusher in an attempt to flush the toilet.

'With respect to the second major issue, that of contributory negligence or assumption or incurral of the risk by the plaintiff, appellee, the court's finding is that the plaintiff was not contributorily negligent nor did he assume or incur the risk of scalding himself with hot water from the bed pan flusher.

'This finding is based on the evidence of record which showed that the patient was suffering from multiple sclerosis, that his known and recorded symptoms lack of muscular co-ordination, difficulty (sic) with vision, weakness in right arm and leg and in grip of right hand, occasional difficulty in walking and in distinguishing shapes. The plaintiff had hand trembles or intention tremors, vertical, nystagumus or involuntary oscillatory eyeball movements, that sometimes his eyes would not focus and he would have some difficulty maintaining his balance. That on the morning of the accident he was subject to a spinal puncture and he was given an injection of thorazine. That the internist was of the opinion that he himself would not drive an automobile for four hours after being injected with thorazine. That a normal consequence of spinal puncture and thorazine injection was a headache. That the plaintiff, appellee, at sometime more than hour after the thorazine injection expressed the desire to use the bathroom. He was never instructed or warned

about the bed pan flusher applicance mounted above and behind the toilet stool. That the remembers attempting to flush the toilet while he remained seated because he wasn't sure he was completed with his toilet function. He remembered touching a knob, and then he remembers the hot water

'The court finds no evidence of his prior knowledge of the presence of the bed pan flusher installation, no evidence of his awareness of danger of hot water being emitted from the flusher mounted behind his back, and no evidence of his assumption or incurral of the risk of being scalded while using the bathroom stool.

'Norman Kopec /s/

'Norman Kopec, Judge

'St. Joseph Superior Court'

[261 Ind. 31] The jury returned a negative verdict on the issue of the hospital's negligence. Plaintiff's motion to correct errors was sustained by the trial court, supra, granting a new trial. The hospital appealed and the Court of Appeals reversed the trial court's judgment. Memorial Hospital of South Bend, Inc. v. Scott (1972), Ind.App., 290 N.E.2d 80. Plaintiff has petitioned this Court for transfer of his cause. The following issues are raised in his petition:

(1) Was the Court of Appeals correct in holding, as a matter of law, that the trial court was unaware of the correct test of contributory negligence?

(2) What is the correct standard of law to be applied on the issue of contributory negligence?

(3) Did the Court of Appeals apply the correct standard to the facts of the instant case?

It is established in Indiana that the burden of proving contributory negligence is on the defendant. Sheptak v. Davis (1965), 246 Ind. 499, 205 N.E.2d 548. The trial court in the instant case has determined that the hospital failed to meet its burden of proof on the issue of Scott's contributory negligence. In discussing this issue, the Court of Appeals states:

'The trial court's ruling indicates that it did not consider the jury's verdict in accord with the evidence. Such a ruling in the present case must incorporate two premises: (1) that Memorial Hospital was negligent and (2) that Richard E. Scott was not contributorily negligent. If the trial court's ruling is incorrect as to either premise, the jury's verdict must stand and the trial court's ruling as to Memorial Hospital must be reversed.' 290 N.E.2d at 84. (Emphasis added.)

Thus, the critical issue here is whether the trial court's ruling is incorrect on the question of Scott's contributory negligence. It is clear that the Court of Appeals has ignored the rulings of Bailey v. Kain (1963), 135 Ind.App. 657, 192 N.E.2d 486, viz., that the trial court's action in granting a new trial is [261 Ind. 32] given a strong presumption of correctness. In Bailey, the jury returned a negative verdict against the plaintiff at trial. Plaintiff subsequently filed a motion for a new trial, which was sustained by the trial court. The defendant appealed, seeking to overturn the trial court's action. In affirming the judgment below, the court said:

'The trial judge is more than a mere umpire; his duties extend beyond the bounds of confining the evidence to the issues and instructing the jury on the law of the case; it was his duty to hear the case along with the jury; he had the opportunity to see and know the jury; he had the duty to observe the witnesses and note the level of their intelligence and wisdom together with their independence or lack of it, their prejudice or lack of it concerning matters about, which they testified, and to note their bias or prejudice, their interest or lack of interest. In short, it was his duty to keep his eyes and ears open to what was going on during the trial so that when

confronted with a motion for a new trial, he could pass upon the purely legal questions involved in the case, as well as determine the weight and sufficiency of the evidence to sustain the verdict. There are many things the trial judge must take in consideration in determining the weight of conflicting evidence and passing upon the question of the preponderance thereof which make his duty in the first instance entirely different from that of an appellate tribunal as a court of review, for at the appellate level we have only the record and briefs exemplified by the cold type before us.' 135 Ind.App. at 663--664, 192 N.E.2d at 488--489

Since the decision in Bailey, supra, we have adopted our present Rules of Trial Procedure. Trial Rule 59(E)(7), IC 1971, 34--5--1--1 lends support to the holding in Bailey and delineates the functional requirements of the trial court where a new trial is granted:

'. . . If corrective relief is granted, the court shall specify the general reasons therefor. When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted . . ..'

The trial judge in the instant case complied with the above rule by setting out his findings of fact. The exercised his [261 Ind. 33] historic duty to insure that the jury system ramains a rational process. The trial judge's power is not exercised in derogation to the right to trial by jury. Indeed, he serves as a safeguard of that right by...