McPherson v. High Point Memorial Hospital

258 S.E.2d 410 (1979)

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.

October 2, 1979.

*412 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 *413 418 (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 of an electric hot water heater reasonably warrants an inference of negligence." Id.

Another relevant case is Collins v. Virginia Power and Electric Co., 204 N.C. 320, 168 S.E. 500 (1933). In Collins, defendant maintained a primary wire charged with electricity along a highway from which secondary wires ran across plaintiff's premises and attached to his warehouse. In an action for damages, the Court held that evidence tending to show that the plaintiff's warehouse *414 caught fire at the point where defendant's wire was attached to the warehouse by a bracket, and that all wires, poles, brackets and other electrical equipment were installed and maintained by defendant and were under its exclusive control and management, was sufficient to submit the case to the jury under the doctrine of res ipsa loquitur.

Apparently anticipating that the res ipsa rule is a factor in the present case, the defendant hospital, citing Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917 (1944), argues that plaintiff offered no proof of any defect in the toll bar. Neither was there any proof, defendant asserts, "as to whether any such incident had ever occurred before or that it had ever malfunctioned on a previous occasion."

First, we point out that the absence of such proof was also true in the above-cited cases of Young v. Anchor Co., Page v. Sloan, and Collins v. Virginia Power and Electric Co. Second, we reiterate that the doctrine of res ipsa loquitur is merely a mode of proof, a means of showing that some negligence was the probable cause of the accident. Third, with reference to Watkins and other cases where certain equivocal inconsistencies have appeared in the decisions of the North Carolina courts, we quote from Stansbury, supra:

The recognition of the sufficiency of this inference of general negligence is perhaps the most distinctive feature of the res ipsa doctrine. Yet, as fundamental as this feature is, it has not always been recognized and followed by the North Carolina Court. The absence of any evidence of specific acts of negligence has been emphasized in a number of decisions in which res ipsa was held inapplicable [citing Warren v. Jeffries, 263 N.C. 531, 139 S.E.2d 718 (1965)], and in some of these this emphasis seems to have caused the Court to overlook the possibility that the occurrence itself could permit an inference of general negligence. [Citations omitted.]

Proof in a case need not preclude every inference other than that of the defendant's negligence. If the inference that his negligence caused the injury is more likely than other permissible inferences, the doctrine should apply.

Rather than trying to resolve these conspicuous conflicts in the cases, we choose to follow what we perceive to be the better-reasoned decisions of Young v. Anchor Co., Page v. Sloan, and Collins v. Virginia Power and Electric Co., supra. Applying the rule of those cases to the facts of this case, we think it plain that plaintiff's evidence supports the application of res ipsa. At this stage of the proceedings, the evidence tends to show that the parking lot toll bar was installed and maintained by the defendant, who exercised exclusive ownership, management and control over the parking lot and this traffic gate. Moreover, we believe it a matter of common human knowledge that a device installed for the specific purpose of regulating the flow of traffic entering and exiting a parking lot, does not malfunction in such a manner as to injure those people entering or exiting the lot, if such device is properly maintained in a safe condition. In the absence of explanation, therefore, we hold that such an occurrence reasonably sustains an inference of negligence sufficient to submit the case to the jury. It follows that the judgment of the trial court granting the defendant's motion for a directed verdict was error, and the same is hereby reversed.

Reversed and remanded.

CLARK and HARRY C. MARTIN, JJ., concur.