Walker v. Rumer

Decision Date08 August 1977
Docket NumberNo. 14031,14031
Citation367 N.E.2d 158,9 Ill.Dec. 724,51 Ill.App.3d 1005
Parties, 9 Ill.Dec. 724 Virginia WALKER, Plaintiff-Appellant, v. Donald RUMER, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Gilbert H. Saikley and Albert Saikley, Saikley, Garrison & Associates, Danville, for plaintiff-appellant.

Donald M. Tennant, Dobbins, Fraker & Tennant, Champaign, for defendant-appellee.

KASSERMAN, Justice.

The question certified in this Rule 308 appeal (Ill.Rev.Stat.1975, ch. 110A, par. 308) is whether or not the allegations of count II of plaintiff's complaint support a cause of action under the theory of res ipsa loquitur. Plaintiff Virginia Walker filed a two-count medical malpractice action against defendant Donald Rumer, who filed a motion to dismiss both counts, alleging, in part, that count II did not support a cause of action under res ipsa loquitur. The trial court denied defendant's motion as to count I and granted the motion as to count II. Plaintiff timely filed leave to appeal after proper Rule 308 certification, and this court granted the application.

The allegations of count II reveal that on July 18, 1974, Rumer performed a bilateral palmar fasciectomy to Mrs. Walker's hands. She alleges that, at all pertinent times, she was exercising ordinary care and was under the exclusive control, care and custody of Rumer; and that as a proximate result of defendant's negligence and carelessness, she sustained severe and permanent injuries to her hands, suffered shock and pain, lost the use of both of her hands and will require additional surgery. As stated in Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 312 N.E.2d 259, a cause of action should not be dismissed unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover and the allegations of fact which were properly pleaded must be taken as true.

Although no transcript of the arguments of counsel and the court's decision on defendant's motion to dismiss appears in the record on appeal, it is clear that dismissal was based on the inapplicability of res ipsa loquitur to the facts alleged. Defendant Rumer asks this court to decide whether the complaint lacks an essential element of pleading, i. e., that the injury would not have taken place and the result would not have occurred in the ordinary course of events if defendant had not been negligent. He contends that for that reason alone, dismissal was appropriate. The trial court's Rule 308 certification does not include this issue and we are under no compulsion to address it; however, since earlier case law on this point is not entirely dispositive, comment on this issue will be made. Walker's count II alleges her due care, defendant's duty, defendant's exclusive control, and unknown acts negligently performed which proximately caused the injuries sustained. These general allegations of negligence are sufficient allegations under the doctrine of res ipsa loquitur. The inference to be drawn from such allegations need not be pleaded.

The issue to be determined on this appeal is whether the doctrine of res ipsa loquitur is applicable to the facts alleged. The supreme court in Edgar County held that no reason appears why, given the appropriate state of facts, the doctrine of res ipsa loquitur is not applicable to an action involving medical malpractice and hospital negligence. Plaintiff argues that the court in Edgar County held that doctrine applicable to medical malpractice and hospital negligence suits without limitation. Defendant contends that Edgar County does not hold, or even intimate, that the doctrine of res ipsa loquitur should be applied without limitation, since the court there clearly established that the application of the doctrine is the exception rather than the rule. He concedes that the court determined that there is no valid reason for holding that the doctrine of res ipsa loquitur is inapplicable to all cases involving intramuscular injections.

We agree with Rumer's interpretation that Edgar County did not indicate that the supreme court established the rule that the doctrine of res ipsa loquitur was automatically applicable to all medical malpractice and hospital negligence suits. At the same time, however, we find nothing in Edgar County to rule out the application of the doctrine to all such cases. We are aware of the numerous appellate decisions refusing to apply the doctrine of res ipsa loquitur to medical malpractice and hospital negligence cases. These courts, however, have historically recognized that there is a "common knowledge" exception to the general rule barring the application of the doctrine of res ipsa loquitur to such suits.

This court in Estell v. Barringer (1972), 3 Ill.App.3d 455, 460, 278 N.E.2d 424, 428, defined the "common knowledge" exception to the normal evidentiary burden to be "(w)here the negligence of the doctor is so obvious, or the remedy so mundane, as to be within the everyday ken of the layman." The court in Estell also stated that res ipsa loquitur may be applicable to medical malpractice cases where the conduct of the doctor is so grossly remiss as to fall within the common knowledge of a layman. It is obvious, therefore, that appellate courts of this state, while holding that the doctrine of res ipsa loquitur is generally not applicable to medical malpractice cases, have applied such doctrine under the exception of "common knowledge."

The consequence of the application of the...

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11 cases
  • Reilly v. Straub, 62208
    • United States
    • United States State Supreme Court of Iowa
    • 29 d3 Agosto d3 1979
    ...... Perin v. Hayne, 210 N.W.2d 609, 614-15 (Iowa 1973); See, e. g., Wolfsmith v. Marsh, 51 Cal.2d 832, 835, 337 P.2d 70, 72 (1959); Walker v. Rumer, 51 Ill.App.3d 1005, 1007-08, 9 Ill.Dec. 724, 727, 367 N.E.2d 158, 161 (1977), Aff'd, 72 Ill.2d 495, 21 Ill.Dec. 362, 381 N.E.2d 689 (1978); ......
  • Cooper v. Dr. Martin Luther King Jr. Boys & Girls Club of Chi.
    • United States
    • United States Appellate Court of Illinois
    • 30 d4 Setembro d4 2021
    ......464, 46 N.E.3d 783. This principle would mean nothing if those inferences had to be pleaded—making them allegations, not inferences. See Walker v. Rumer , 51 Ill. App. 3d 1005, 1006, 9 Ill.Dec. 724, 367 N.E.2d 158 (1977) ("The inference to be drawn from such allegations need not be ......
  • Spidle v. Steward, 14804
    • United States
    • United States Appellate Court of Illinois
    • 30 d2 Janeiro d2 1979
    ......Walker v. Rumer (1978), 72 Ill.2d 495, 21 Ill.Dec. 362, 381 N.E.2d 689, the supreme court affirmed our decision (51 Ill.App.3d 1005, 9 Ill.Dec. 724, 367 ......
  • Connors v. University Associates, Civ. A. No. 89-294.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • 9 d2 Julho d2 1991
    ...... See, e.g., Walker v. Rumer, 51 Ill. App.3d 1005, 9 Ill.Dec. 724, 367 N.E.2d 158 (1977); but see Hayes, 133 S.E.2d at 107. Instead, they have created numerous ......
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