On Appeal from Final Judgment of the Superior Court, Law Division, Essex County.
Antell, Long and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.s.c., temporarily assigned.
The infant plaintiff was hospitalized on September 19, 1981 at the age of 17 months. Two days later the mother of another patient reported to a nurse that the infant had fallen while attempting to climb out of his crib. X-ray examination of the child revealed a linear skull fracture. The plaintiffs conceded that the child suffered no neurological deficit as the result of the skull fracture but contended that the fracture was the proximate cause of certain behavioral disorders. The jury returned a verdict against the hospital and against six of the individual defendants in the amount of $400,000.00. These defendants appeal.*fn1
Plaintiffs contended at trial that the defendants were negligent in failing to place the infant in a safety crib which would have prevented the infant from climbing out of it. In support of this theory of defendants' negligence the parents testified that they had advised the defendants to place their child in a safety crib because he was a "climber". An expert also testified in support of plaintiffs' theory. Defendants concede that this evidence could support a jury finding that the defendants were negligent. However, in addition to a jury charge on general negligence, the trial judge, at plaintiffs' request, also
charged the principles of res ipsa loquitur. Defendants contend that the res ipsa loquitur charge was not warranted in this case.
Although he did not use the phrase res ipsa loquitur, the trial judge instructed the jurors that they could infer that the accident was caused by the defendants' negligence if they find that the accident took place "under circumstances which would suggest that in the ordinary course of events it would not have happened without a lack of due care" and that the infant was under the exclusive control and care of the defendants and that there is no evidence that the incident was attributable to the infant's "voluntary act". This charge states the principles of res ipsa loquitur.
Specifically, defendants take exception to the first element of res ipsa loquitur charged by the court. They contend that a fall from a crib in a hospital setting does not bespeak negligence. We disagree and affirm the verdict of liability.
Res ipsa loquitur is a principle which permits, but does not compel, a jury to infer negligence from the mere happening of a particular event. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958), in which the rule is applied, is the classic case of an exploding bottle of soda pop. The rule creates a "permissive presumption that these circumstances furnish reasonable grounds for the inference that if due care had been exercised by the person having control of the instrumentality causing the injury, the mishap would not have occurred." Id. at 269 The principle has been described as a rule of circumstantial evidence, Pisano v. S. Klein on the Square, 78 N.J. Super. 375 (App.Div.1963), certif. den. 40 N.J. 220 (1963), and it is available to a plaintiff if it is more probable than not that the defendant's negligence was a proximate cause of the mishap. Buckelew v. Grossbard, 87 N.J. 512 (1981). Other cases in which our courts have held that res ipsa loquitur did apply, or should have applied, are Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595 (1958) (patron thrown from roller coaster); Rose v. Port of New York Authority, 61 N.J. 129 (1972) (traveler
collided with automatic door at airport); Pisano v. S. Klein on the Square, supra, (child's hand caught in escalator) and Terrell v. Lincoln Motel, Inc., 183 N.J. Super. 55 (App.Div.1982) (motel guest fell through shower door attempting to escape burst of scalding water).
In most cases, the ability of a jury to draw an inference of negligence from the occurrence itself is based on the common experience and common knowledge of jurors. However, where the event is beyond the common experience of jurors, expert testimony may be utilized to establish that a particular event would not have occurred in the absence of negligence. Thus, in Buckelew v. Grossbard, supra, the plaintiff's bladder had been cut accidentally during exploratory abdominal surgery. The Court held that the trial court's failure to give the plaintiff the benefit of res ipsa loquitur was error because the testimony of plaintiffs' expert that the incident would not have occurred in the absence of negligence established the basis for an inference of negligence.
Although the appellants in the present case are a hospital and its health care staff, this matter is more appropriately regarded as a child care case rather than a medical malpractice case. The hospital was entrusted with the care of an infant of the age of 17 months. He was placed in a crib. The defendants had a duty to provide the infant with proper care, which included the duty to supervise him and make observations of him in his new environment. The evidence established that neither the individual defendants nor any other hospital employee were aware that the child had fallen from the crib until Nurse Farley was informed of the incident by the mother of another patient. Utilizing its common experience and common knowledge regarding the propensities of 17 month old infants and the level of observation and supervision reasonably necessary to protect them, the ...