Ravo v. Lido

• Decision Date: 24 December 1962
• Citation: Ravo v. Lido, 236 N.Y.S.2d 135, 17 A.D.2d 476 (N.Y. App. Div. 1962)
• Parties: Matilda RAVO and Arthur Ravo, Respondents, v. Jay LIDO, doing business as Jay's Cut & Swirl Studio, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 135

236 N.Y.S.2d 135

17 A.D.2d 476

Matilda RAVO and Arthur Ravo, Respondents, v.Jay LIDO, doing business as Jay's Cut & Swirl Studio, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 24, 1962.

Donald A. Mead, White Plains, for appellant; Thomas Grimes, Brooklyn, of counsel.

Jacobs & Rubin, Mt. Vernon, for respondent; Milton D. Jacobs and Isaac Rubin, Mount Vernon, of counsel.

CHRIST, Justice.

The basic question presented is whether the doctrine of res ipsa loquitur is applicable where the injured plaintiff claims to have sustained personal injury as the result of a permanent hair wave treatment administered to her in defendant's beauty parlor by a machineless method known as the 'cold wave' process.Involved in that question is the issue whether the lotion or lotions used in said process proximately caused the injury.There appears to be no authoritative reported adjudication on the subject in this State.

The female plaintiff testified that shortly after 9 A.M. on February 27, 1960, defendant's employee, one Burt, first attempted to create a wave in her hair by applying with a cotton dab 'some lotion' to the hair, and then by putting the hair 'up in curlers.'This was done 'a section' of hair at a time.After an interim of 15 minutes, Burt applied to the hair another liquid characterized as a 'neutralizer.'He then removed the curlers and rinsed the hair.The effort failed; plaintiff's hair remained 'straight.'With plaintiff's consent, Burt then repeated the treatment; and this time he succeeded in achieving a wave.The duration of each treatment was about half an hour; and during each the lotion ran down from plaintiff's hair and over her face.

Concerning the second treatment, plaintiff testified that the liquid went 'all over' her; that 'the smell was so strong' that she remarked about it to Burt, but that he told her not to worry; that 'he had [used] too much lotion;' that repeatedly she wiped the liquid from her face; that she had 'a burning sensation * * * all around' her head; and that, at the conclusion of the second treatment, she sat under a 'dryer.'

Plaintiff further testified that she left defendant's establishment at one o'clock in the afternoon, and that in the evening of the same day she began to have 'burning sensations' around her temple, head, earlobes and scalp, accompanied by itching in all such parts.

Plaintiff's physician, who treated her at stated times for about a month after she obtained the permanent hair wave described her condition as an inflammation of the scalp; a swelling and scaling in the area of the left ear; a swelling of both eyelids, and a rash on the hairline, with accompanying pain.Plaintiff testified also that previously (about twice a year)she had had 'cold waves' administered to her hair, and that on none of such prior occasions had the liquid ever come down over her as it did this time.

On the issue of proximate cause, plaintiff's physician further testified that he had 'an idea as to what' was meant by the term 'cold wave;' that, although he did not know the brand of lotion that had been used, he had 'had experience before,''it's a chemical treatment;''people get reactions from them;'he had 'seen it happen before, and we know it happens;' and 'we can tell from the character of the rash that this was definitely a toxic contact dermatitis;' that, although there are many things which could have caused plaintiff's condition as he observed it, there was in his opinion 'only one cause' for the trauma.In support of his opinion, plaintiff's doctor testified that 'we have no history of anything else having happened;' that not everybody gets the same reaction to a cold-wave lotion; and that the cause of plaintiff's condition was not an allergy 'in that sense of the words.'The doctor also testified that it normally takes 12 to 24 hours for definite signs of reddening, swelling and itching of the skin to develop; and probably longer than 24 hours for the scaling of the skin to appear.

Defendant, in his testimony, furnished the trade name of the cold-wave lotion that had been used by his employee.Defendant testified that, in the 2 1/2 years prior to the injury to plaintiff, about 200 'cold waves' had been given in his shop with that lotion and that none of the customers thus treated had ever suffered a head condition such as that described by plaintiff.

At the close of plaintiff's case, the trial justice denied defendant's motion to dismiss the complaint; and, at the close of the entire case his ruling was the same.In his instructions to the jury, the trial justice expounded the res ipsa doctrine.He charged that the doctrine permits an inference of negligence; and that it may be invoked where 'direct evidence of negligence is absent or not readily available, * * * provided it is probable that the accident could not have occurred if reasonable care was exercised, and that the person charged with negligence had control of the agency causing the injury.'Exception to the instruction was duly taken; and the jury returned a verdict in favor of the plaintiffs.In our opinion, the instruction was erroneous and constituted reversible error.

Where application of a chemical cosmetic is followed by personal injury of the type that sometimes results from the use of such cosmetics, nevertheless, in the absence of proof, it may not be said that necessarily, and to the exclusion of all other possible causes, the application of the cosmetic was the cause of the injury.Causally, the injuries could have been related to toxicity of the chemical in question (seeCahill v. Inecto, Inc., 208 App.Div. 191, 203 N.Y.S. 1;Karr v. Inacto, Inc., 247 N.Y. 360, 160 N.E. 398;Fein v. Bonetti, 307 N.Y. 682, 120 N.E. 854); to an allergy of the subject person (seeKarr v. Inecto, Inc., supra;Sanders v. Clairol, Inc., 2 A.D.2d 857, 155 N.Y.S.2d 945); to the use of improper methods in the process of applying the chemical upon the subject person (Barrett v. Lazzara, 3 A.D.2d 982, 163 N.Y.S.2d 420); or to such person's contact with other products capable of bringing about the same injurious effect (seeKarr v. Inecto, Inc., supra;Blish v. Greco, City Ct., 41 N.Y.S.2d 390).

The basic elements of the res ipsa loquitur doctrine were tersely set forth in Manley v. New York Tel. Co., 303 N.Y. 18, 25-26, 100 N.E.2d 113, 116; and, to the extent necessary, we quote therefrom as follows:

'In a res ipsa case, as in any other, the plaintiff must establish first and foremost the nature of the instrumentality which is alleged to have caused the injury * * * and its identity with the defendant * * *.While the actual sequence of events may be established by inference * * *, the circumstances must be such as to indicate negligence, and there must be more than mere speculation, guess or surmise * * *.[The] mere fact that an accident has happened and that injury followed does not give rise to a presumption of negligence on the part of the one charged * * *.The maximum may be invoked only where the "circumstances of the case unexplained justify the inference of negligence", * * *.Whether the rule of res ipsa loquitur is to be applied depends upon 'whether, upon 'a common-sense appraisal of the probative value' of the circumstantial evidence, measured in part by the test of whether it is the best evidence available, inference of negligence is justified.'* * *

'Moreover, if the evidence, such as there is, is capable of an interpretation equally consistent with the presence or absence of a wrongful act, that meaning must be ascribed which accords with its absence * * *.'

There are other helpful expressions on the subject.Thus, a noted writer has said that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person'(IX Wigmore on Evidence, [3d ed.] § 2509, pp. 382-4).The courts have said: 'Not to be ignored as a policy factor is the wide availability which now exists to examine the defendant before trial and [to] establish the circumstances of the accident; nor have the courts ignored the pervasiveness of liability insurance or been unaware of its practical consequences'(LoPiccolo v. Knight of Rest Prods. Corp., 7 A.D.2d 369, 373-374, 183 N.Y.S.2d 301, 306, affd.9 N.Y.2d 662, 212 N.Y.S.2d 75); the doctrine 'is not intended to relieve one party or the other of the expense of producing proof'(Curley v. Ruppert, 272 App.Div. 441, 444, 71 N.Y.S.2d 578, 581); and it should be 'sparingly' applied, 'with caution in peculiar and exceptional cases, and only where the facts and demands of justice make the application essential'(65 C.J.S.Negligence§ 220, pp. 1031-1032).

The rule of res ipsa loquitur has been held applicable in other jurisdictions where injuries have followed hair waving by means of electrically heated curling machines applied to the hair (seeChauvin v. Krupin, 4 Cal.App.2d 322, 326, 40 P.2d 904[1935];Pearson v. Butts, 224 Iowa 376, 276 N.W. 65[1937];Pappas v. Desmarais, 310 Mass. 826, 38 N.E.2d 219[1941];see14 A.L.R.2d 877 et seq.).In those cases the injured plaintiffs had experienced heat and had complained to the operator during the course of the treatment.The burden of going forward with the proof was shifted to the defendants on the theory, as stated in Chauvin(supra), that 'the devices * * * were under the exclusive control of the defendants,' and the 'injury was one which in the natural course of things would not have occurred had defendants used due care * * *.'

There appears to be no reported New York case making a similar determination, except that the doctrine of res ipsa loquitur was applied in Tsamourtzis v. Bergdorf Goodman Co.(Sup., 201 N.Y.S.2d 912) where the machine used was...