10 A.2d 161 (1998)

Joanne SHEELEY et al.
v.
MEMORIAL HOSPITAL et al.

No. 95-602-Appeal.

Supreme Court of Rhode Island.

April 8, 1998.

James T. McCormick, for Plaintiff.

Colleen J. Pelletier, William F. White, Mark C. Hadden, Providence, for Defendant.

Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

OPINION

GOLDBERG, Justice.

This case is before the court on the appeal of Joanne Sheeley (Sheeley) from the directed verdict entered against her in the underlying medical malpractice action. Specifically Sheeley asserts that the trial justice erred in excluding the testimony of her expert witness, which exclusion resulted in the entry of the directed verdict.^[1]For the reasons set forth below, we hold that the trial justice erred in excluding the testimony and reverse the judgment from which the appeal was taken. Furthermore, we take this opportunity to reexamine the proper standard of care to be applied in medical malpractice cases and, in so doing, abandon the "similar locality" rule, which previously governed the admissibility of expert testimony in such actions. The facts insofar as are pertinent to this appeal are as follows.

On May 19, 1987, Sheeley delivered a healthy child at Memorial Hospital (hospital) in Pawtucket, Rhode Island. At the time of the birth Sheeley was under the care of Mary Ryder, M.D. (Dr. Ryder), then a second-year family practice resident. Brian Jack, M.D. (Dr. Jack), was the faculty member responsible for the supervision of Dr. Ryder.

In conjunction with the delivery process Dr. Ryder performed an episiotomy on Sheeley. This procedure entails a cut into the perineum of the mother, the purpose being to prevent tearing during the delivery. After the baby had been delivered, Dr. Ryder performed a repair of the episiotomy, stitching the incision previously made into the perineum.

After her discharge from the hospital Sheeley developed complications in the area in which the episiotomy had been performed and ultimately developed a rectovaginal fistula. This condition, which consists of an opening between the vagina and the rectum, required corrective surgery. Notwithstanding the surgery, however, Sheeley continued to experience pain and discomfort at the site of the episiotomy. Sheeley, together with her husband Mark Sheeley, then filed suit against the hospital, Dr. Ryder, and Dr. Jack (collectively defendants), alleging that defendants were negligent in performing the episiotomy incision and repairing the same properly.^[2]

At the trial on the malpractice action, Sheeley sought to introduce the expert medical testimony of Stanley D. Leslie, M.D. (Dr. Leslie), a board certified obstetrician/gynecologist (OB/GYN). Doctor Leslie planned to testify about Dr. Ryder's alleged malpractice and the applicable standard of care as it relates to the performance of an episiotomy. The defendants objected and filed a motion in limine to exclude `the testimony, arguing that Dr. Leslie, as an OB/GYN, was not qualified under G.L.1956 § 9-19-41^[3] to testify against a family practice resident who was performing obstetric and gynecological care. A hearing on the motion was conducted, at which time it was disclosed that Dr. Leslie had been board certified in obstetrics and gynecology since 1961 and recertified in 1979. Doctor Leslie testified that board certification represents a level of achievement of skill and knowledge as established by a national standard in which the standard of care is uniform throughout the medical specialty. Doctor Leslie is currently a clinical professor of obstetrics and gynecology at the Hill-Science Center, State University, College of Medicine in Syracuse. He is a member of the New York Statewide Professional Standards Review Council, which reviews disputes between doctors and hospitals regarding diagnosis and management, and the Credentials and Certification Committee at the Crouse-Irving Hospital, where his responsibilities include drafting standards for family practice physicians. It was further revealed that Dr. Leslie has in the course of his career delivered approximately 4,000 babies and that even though he has been retired from the practice of obstetrics since 1975, he has maintained his familiarity with the standards and practices in the field of obstetrics through weekly conferences, active obstetric work, professorial responsibilities, and continuing education.

Nevertheless, relying on Soares v. Vestal, 632 A.2d 647 (R.I.1993), defendants maintained that § .9-19-41 requires a testifying expert to be in the same medical field as the defendant physician. In Soares this court upheld the trial justice's decision to exclude the testimony of the plaintiff's expert witness in a situation in which the expert was board certified in neurology and internal medicine, and the underlying malpractice action involved a family practitioner performing emergency medicine. 632 A.2d at 648. Agreeing that Soares was determinative, the trial justice here granted defendants' motion, stating: "I fail to see where this case is distinguishable from Soares. I don't quarrel with the doctor's background and qualifications. I think he's the inappropriate expert to testify in this case." Sheeley did not have any other experts prepared to testify, nor was she able to procure one within the two-day period allowed by the trial justice. Consequently defendants' motion for a directed verdict was granted. This appeal ensued.

On appeal Sheeley argues that the trial justice's ruling constitutes an abuse of discretion and is clearly wrong because Dr. Leslie was amply qualified to testify concerning the alleged malpractice. The defendants respond by arguing that Sheeley's appeal should be summarily dismissed for her failure to make an adequate offer of proof. Furthermore defendants assert that Sheeley's expert is not competent to offer expert testimony on the appropriate standard of care because he has more specialized training than Dr. Ryder and because he lacks any recent experience in providing obstetric care.

At the outset we note that there is no merit to defendants' contention that Sheeley's failure to make an offer of proof precludes this court from reviewing the trial justice's decision. Rule 103(a)(2) of the Rhode Island Rules of Evidence clearly states that in cases in which the ruling appealed from is one excluding evidence, "the substance of the evidence [had to be] made known to the court by offer or was apparent from the context within which questions were asked" before its exclusion can serve as a basis of error. (Emphasis added.) If, however, the nature of the evidence offered clearly describes the relevance and competence of the offered evidence, no such offer of proof is necessary. See Hudson v. Napolitano, 575 A.2d 187, 188-89 (R.I.1990). In a medical malpractice case expert testimony is an essential requirement in proving the standard of care applicable to the defendant, "unless the lack of care is so obvious as to be within the layman's common knowledge." Richardson v. Fuchs, 523 A.2d 445, 448 (R.I. 1987). Accordingly we are of the opinion that in this instance, the nature of the evidence offered clearly evinces its relevance and competence such that an offer of proof was not necessary. That said, we turn to the specific issue on appeal.

"The determination of the competency of an expert witness to testify is within the discretion of the trial justice." Id. This court will not disturb that decision in the absence of clear error or abuse. Id. In fairness to the trial justice, we note that in making her determination with respect to the admissibility of the expert's testimony, she was without the benefit of our decisions in Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425 (R.I.1996), and more importantly Buja v. Morningstar, 688 A.2d 817 (R.I.1997), which have distinguished Soares and limited its holding to situations in which the physician-expert lacks knowledge, skill, experience, or education in the same medical field as the alleged malpractice. Nevertheless, after a review of these cases, we find it clear that the trial justice did in fact abuse her discretion and commit reversible error in excluding the testimony of Dr. Leslie.

In Buja the plaintiffs brought a medical malpractice action against their family practitioners when their child suffered severe medical complications, including cerebral palsy and mental retardation, after having been deprived of oxygen just prior to birth. Buja, 688 A.2d at 818. At trial, the plaintiffs sought to introduce testimony of a board certified obstetrician. The trial justice, however, excluded the testimony and stated that testimony concerning the standard of care required of a family practitioner practicing obstetrics had to be introduced by an expert in family medicine, not an expert in OR/GYN. Id. Relying on our previous holding in Marshall, this court reversed the trial justice and stated that even though the proposed expert did not practice in the same specialty as the defendants, he clearly had the prerequisite "knowledge, skill, experience, training or education " " in the field of the alleged malpractice." Id. at 819 (quoting § 9-19-41 and citing Marshall 677 A.2d at 427). The Buja court held that nothing in the language of § 9-19-41 requires the expert to practice in the same specialty as the defendant. 688 A.2d at 819. "Such an additional requirement is unnecessary and is in contravention to the General Assembly's clear intentions, as expressed in § 9-19-41." 688 A.2d at 819. In view of this holding and the striking factual similarities of the instant matter to Buja, there can be little doubt that we must reverse the decision of the trial justice and remand the case for a new trial.

Yet in spite of our holdings in Buja and Marshall, defendants continue to insist that Dr. Leslie is not qualified to testify. In essence defendants argue that Dr. Leslie is overqualified, stating that a board certified OB/GYN does not possess the same knowledge, skill, experience, training, or education as a second-year family practice resident performing obstetrics in Rhode Island. Furthermore defendants argue that because Dr. Leslie has not actually practiced obstetrics since 1975, his experience in providing obstetrical care is "clearly outdated" and he is therefore not competent to testify concerning the appropriate standard of care as it applied to the performance of an episiotomy and the repair of the same—even while they acknowledge that the standard of care relative to the procedures involved in the alleged malpractice have changed little over the last thirty years. Finally defendants assert that pursuant to the limitations of the "similar locality" rule, Dr. Leslie must be disqualified because he lacks any direct knowledge about the applicable standard of care for a family practice resident providing obstetric care in Rhode Island. The defendants suggest that Dr. Leslie, although he has attended national conferences and studied medical journals and treatises in addition to his national certification, is not qualified to testify about the applicable local standard of care. In light of these arguments and with a view toward preventing any further confusion regarding the necessary qualifications of an expert testifying about the proper standard of care in medical malpractice actions, we take this opportunity to revisit our position on the appropriate standard of care.

For over three-quarters of a century this court has subscribed to the principle "that when a physician undertakes to treat or diagnose a patient, he or she is under a duty to exercise the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities having due regard for the state of scientific knowledge at the time of treatment.'" DiFranco v. Klein, 657 A.2d 145, 148 (R.I. 1995); see also Schenck v. Roger Williams General Hospital 119 R.I. 510, 515, 382 A.2d 514, 517 (1977); Marshall v. Tomaselli, 118 R.I. 190, 196, 372 A.2d 1280, 1284 (1977); Wilkinson v. Vesey, 110 R.I. 606, 613, 295 A.2d 676, 682 (1972); Bigney v. Fisher, 26 R.I. 402, 403, 59 A. 72, 72 (1904). This "same or similar locality" rule is a somewhat expanded version of the "strict locality" rule, which requires that the expert testifying be from the same community as the defendant. See Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 248 (1975); see, e.g., Moon v. United States, 512 F.Supp. 140, 144 (D.Nev.1981); Hoagland v. Kamp, 155 A.D.2d 148, 552 N.Y.S.2d 978, 979 (1990). The rationale underlying the development of the "strict locality" rule was a recognition that opportunities, experience, and conditions may differ between densely and sparsely populated communities. See Shilkret, 349 A.2d at 248-49; 61 Am. Jur.2d, Physicians, Surgeons and Other Healers, § 218 (1981):

This restrictive rule, however, soon came under attack in that it legitimized a low standard of care in certain smaller communities and that it also failed to address or to compensate for the potential so-called conspiracy of silence in a plaintiffs locality that would preclude any possibility of obtaining expert testimony. See Shilkret, 349 A.2d at 249. Furthermore, as this court noted in Wilkinson, the locality rule is somewhat of an anachronism in view of "[m]odern systems of transportation and communication." Wilkinson, 110 R.I. at 613 n. 5, 295 A.2d at 682 n. 5. Thus many jurisdictions, including our own, adopted the "same or similar locality" rule, which allows for experts from similarly situated communities to testify concerning the appropriate standard of care. Id.; see, e.g., Portillo v. United States, 816 F.Supp. 444, 446 (W.D.Tex.1993); Priest v. Lindig, 583 P.2d 173, 176 (Alaska 1978); Tucker v. Meis, 127 N.C.App. 197, 487 S.E.2d 827, 829 (1997). Nevertheless, even with this somewhat expanded view, the medical malpractice bar has continually urged a narrow application of the rule, arguing the need for similar, if not identical, education, training, and experience. See Buja, 688 A.2d at 818 (defense counsel argued obstetrician not qualified to testify concerning standard of care required of family practitioner performing obstetrical procedures); Marshall, 677 A.2d at 426-27 (defense counsel argued physician skilled in pediatrics and family medicine not qualified to testify against physician certified in emergency and internal medicine when the alleged malpractice concerned treatment of animal bite). The obvious result of such an application, however, is to reduce the pool of qualified experts to its lowest common denominator. This is a consequence that we have never intended.

The appropriate standard of care to be utilized in any given procedure should not be compartmentalized by a physician's area of professional specialization or certification. On the contrary, we believe the focus in any medical malpractice case should be the procedure performed and the question of whether it was executed in conformity with the recognized standard of care, the primary concern being whether the treatment was administered in a reasonable manner. Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard. The resources available to a physician, his or her specific area of practice, or the length of time he or she has been practicing are all issues that should be considered by the trial justice in making his or her decision regarding the qualification of an expert. No one issue, however, should be determinative. Furthermore, except in extreme cases, a witness who has obtained board certification in a particular specialty related to the procedure in question, especially when that board certification reflects a national standard of training and qualification, should be presumptively qualified to render an opinion. See Shilkret,349 A.2d at 253; see also Cheek v. Domingo, 628 F.Supp. 149, 152 (D.Virgin Islands 1986) (holding specialist may testify regarding standard of care of general practitioner provided proposed witness possesses requisite knowledge).

This court is of the opinion that whatever geographical impediments may previously have justified the need for a "similar locality" analysis are no longer applicable in view of the present-day realities of the medical profession. As the Shilkret court observed:

"The modern physician bears little resemblance to his predecessors. As we have indicated at length, the medical schools of yesterday could not possibly compare with the accredited institutions of today, many of which are associated with teaching hospitals. But the contrast merely begins at that point in the medical career: vastly superior postgraduate training, the dynamic impact of modern communications and transportation, the proliferation of medical literature, frequent seminars and conferences on a variety of professional subjects, and the growing availability of modern clinical facilities are but some of the developments in the medical profession which combine to produce contemporary standards that are not only much higher than they were just a few short years ago, but are also national in scope.

"In sum, the traditional locality rules no longer fit the present-day medical malpractice case." Shilkret, 349 A.2d at 252.

We agree. Furthermore, we note that in enacting § 9-19-41, the Legislature failed to employ any reference to the "similar locality" rule. We conclude that this omission was deliberate and constitutes a recognition of the national approach to the delivery of medical services, especially in the urban centers of this country, of which Rhode Island is certainly one.

Accordingly we join the growing number of jurisdictions that have repudiated the "same or similar" communities test in favor of a national standard and hold that a physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.^[4] In this case the alleged malpractice occurred in the field of obstetrics and involved a procedure and attendant standard of care that has remained constant for over thirty years. Doctor Leslie, as a board certified OB/GYN with over thirty years of experience, a clinical professor of obstetrics and gynecology at a major New York hospital, and a member of the New York Statewide Professional Standards Review Council, is undoubtedly qualified to testify regarding the appropriate standard of care.

For the foregoing reasons the plaintiff's appeal is sustained, and the judgment appealed from is reversed. The papers in the case are remanded to the Superior Court with our decision endorsed thereon for a new trial in accordance with this opinion.

[1] Pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, as amended in 1995, motions for directed verdict are now designated as motions for judgment as a matter of law.

[2] Mark Sheeley, who has since been divorced from Joanne, is no longer a party to the lawsuit. The complaint against Dr. Jack has been dismissed.

[3] General Laws 1956 § 9-19-41 states:

"In any legal action based upon a cause of action arising on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice."

[4] See Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 253 (1975); see also Parker v. Collins, 605 So.2d 824, 826 (Ala.1992); Capitol Hill Hospital v. Jones, 532 A.2d 89, 94 (D.C.App.1987); Williams v. Ricks, 152 Ga.App. 555, 263 S.E.2d 457, 458 (1979); Advincula v. United Blood Services, 176 Ill.2d 1, 223 Ill.Dec. 1, 12, 678 N.E.2d 1009, 1020 (1996); Vergara v. Doan,593 "N.E.2d 185, 187 (Ind.1992); Speed v. State, 240 N.W.2d 901, 908 (Iowa 1976); Blair v. Eblen, 461 S.W.2d 370, 373 (Ky.Ct.App.1970); Josselyn v. Dearborn, 143 Me. 328, 62 A.2d 174, 179 (1948); Stepakoff v. Kantar, 393 Mass. 836, 473 N.E.2d 1131, 1135 (1985); Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985); Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo.Ct.App.1994); Wilburn v. Cleveland Psychiatric Institute, 1998 WL 53936 at 2 (Ohio Ct.App.1998); Spencer v. Seikel, 742 P.2d 1126, 1128 (Okla.1987); King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981); Shamburger v. Behrens, 418 N.W.2d 299, 306 (S.D.1988); Pederson V: Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 978 (1967); Plaintiff v. Parkersburg, 176 W.Va. 469, 345 S.E.2d 564, 565 (1986); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166, 174 (1973); Roybal v. Bell, 778 P.2d 108, 112 (Wyo. 1989).

[451 N.Y.S.2d 53] Thomas R. Newman, L. Kevin Sheridan and Louis G. Adolfsen, New York City, for appellants.

Norman H. Dachs, Mineola, for respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of $240,000. A sharply divided Appellate Division, 82 A.D.2d 20, 441 N.Y.S.2d 62, having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case.

The controversy has its genesis in the shattering of a bathtub's glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.

The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.

Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff's injuries to a "fall through his bathroom glass door". Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by 40% to account for contributory negligence.^[1]

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950's, a practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. [451 N.Y.S.2d 54] This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in "hazardous locations", including "bathtub enclosures".^[2] Over objection, the trial court also allowed in sections 389-m and 389-o of New York's General Business Law, which, enacted in 1972 though effective only as of July 1, 1973, required, on pain of criminal sanctions, that only "safety glazing material" be used in all bathroom enclosures after the effective date;^[3] however, the court carefully cautioned the jury that, because the statute did not apply to existing installations, of which the glass in question was one, it only was to be considered "along with all the other proof in this case, as a standard by which you may measure the conduct of the defendants". And, on examination of the defendants' managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff's counsel elicited agreement that, since at least 1965, it was customary for landlords who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with "some material such as plastic or safety glass".

In face of this record, in essence, the rationale of the majority at the Appellate Division was that, "assuming that there existed a custom and usage at the time to substitute shatterproof glass" and that this was a "better way or a safer method of enclosing showers" (82 A.D.2d, p. 23, 441 N.Y.S.2d 62), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law.^[4] To this the court added that, were it not dismissing, it would have ordered a new trial because, in its view, the admission of the afore-mentioned sections of the General Business Law, even with the reservations attached by the Trial Judge, constituted reversible error.

In a dissenting opinion, Justice Leonard Sandler disagreed on both counts; on the underlying liability issue, he found that the plaintiff had presented a clear question of fact for the jury and, on the evidentiary one stemming from the submission of the General Business Law, after noting that a careful marshaling of authorities had persuaded him that it was a "close question" (82 A.D.2d, p. 28, 441 N.Y.S.2d 62), he opined that whether the statute should have gone to the jury was properly within the Trial Judge's discretion. Concurring in part and dissenting in part, Justice Arnold Fein, [451 N.Y.S.2d 55] writing separately, took the position that, while there indeed was "ample" evidence of custom and usage to support the plaintiff's verdict, a new trial was required since the advice to the jury of the contents of the statute, no matter how cushioned by qualifications, "could only be misleading" (82 A.D.2d, p. 30, 441 N.Y.S.2d 62).

For the reasons which follow, we agree with Justice Sandler and Justice Fein that plaintiff established a prima facie case. However, we would not disturb the conclusion of Justice Fein and the majority that the General Business Law did not belong in the case.

Our analysis may well begin by rejecting defendants' contention that the shower door was not within the compass of section 78 of the Multiple Dwelling Law. From early on, it was understood that this statute was enacted in recognition of the reality that occupants of tenements in apartment houses, notwithstanding their control of the rented premises, as a practical matter looked to their landlords for the safe maintenance of the tenanted quarters as well. The result was that, if responsibility for keeping "every part thereof * * * in good repair" was not placed on the landlords, defects would remain unremedied (Multiple Dwelling Law, § 78; see Altz v. Leiberson, 233 NY 16, 19, 134 N.E. 703). Therefore, though early cases may have chosen to give the statutory phrase "every part" a restrictive connotation (e.g., Kitchen v. Landy, 215 App.Div. 586, 214 N.Y.S. 241 and Boylan v. 1986 Grand Ave. Realty Corp., 169 Misc. 881, 8 N.Y.S.2d 200 later cases made clear that the remedial reach of the legislation mandated a more expansive interpretation under which fixtures or appliances furnished by the landlord were found to be within the statutory intendment (Herring v. Slattery & Bros., 266 App.Div. 719, 41 N.Y.S.2d 921, affd. 291 N.Y. 794, 53 N.E.2d 368 Rosen v. 2070 Davidson Ave. Corp., 246 App.Div. 588, 284 N.Y.S. 802, mot. for lv. to app. den. 270 N.Y. 676 [defective clothes drier]).

Which brings us to the well-recognized and pragmatic proposition that when "certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that has fallen below the required standard" (Garthe v. Ruppert, 264 N.Y. 290, 296, 190 N.E. 643). Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.

It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4, 57 N.E. 79 and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v. Blaine Co., 273 N.Y. 386, 389, 7 N.E.2d 673 Put more conceptually, proof of a common practice aids in "formulatthe general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances" (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456-457).

The source of the probative power of proof of custom and usage is described differently by various authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence § 461; Prosser, Torts § 33). Support for its relevancy and reliability comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed (Morris, Custom and Negligence, [451 N.Y.S.2d 56] 42 Col.L.Rev. 1147, 1148). Following in the train of both of these boons is the custom's exemplification of the opportunities it provides to others to learn of the safe way, if that the customary one be. (See Restatement, Torts 2d, § 295A, Comments a, b.)

From all this it is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that "the actor may be charged with knowledge of it or negligent ignorance" (Prosser, Torts § 33, p. 168; Restatement, Torts 2d, § 295A, p. 62, Comment a).

However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence (1 Shearman & Redfield, Negligence § 10). Before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not (see Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550, 98 N.E. 9). After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. As Holmes' now classic statement on this subject expresses it, "usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not" (Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 622-23, 47 L.Ed. 905).

So measured, the case the plaintiff presented, even without the insertion of sections 389-m and 389-o of the General Business Law, was enough to send it to the jury and to sustain the verdict reached. The expert testimony, the admissions of the defendant's manager, the data on which the professional and governmental bulletins were based, the evidence of how replacements were handled by at least the local building industry for the better part of two decades, these in the aggregate easily filled that bill. Moreover, it was also for the jury to decide whether, at the point in time when the accident occurred, the modest cost and ready availability of safety glass and the dynamics of the growing custom to use it for shower enclosures had transformed what once may have been considered a reasonably safe part of the apartment into one which, in the light of later developments, no longer could be so regarded.

Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence of custom and usage "by others engaged in the same business" in proper perspective, when, among other things, he told the jury that the issue on which it was received was "the reasonableness of the defendant's conduct under all the circumstances". He also emphasized that the testimony on this score was not conclusive, not only by saying so but by explaining that "the mere fact that another person or landlord may have used a better or safer practice does not establish a standard" and that it was for the jurors "to determine whether or not the evidence in this case does establish a general custom or practice".

Nevertheless, we reverse and order a new trial because the General Business Law sections should have been excluded. True, if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liability, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent (see Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814; Restatement, Torts 2d, § 286; see, generally, James, Statutory Standards and Negligence in Accident Cases, 11 La.L.Rev. 95). Be that as it may, the fact is that the statutes here protected only those tenants for whom shower glazing was installed after the statutory effective date. Plaintiff was not in that class. Thus, while new installations made during the three-year interval between July 1, 1973, the effective date of the new General Business Law provisions, and July, 1976, when plaintiff was injured, could have counted [451 N.Y.S.2d 57] numerically in the totality of any statistics to support the existence of a developing custom to use safety glass, defendants' objection to the statutes themselves should have been sustained. Without belaboring the point, it cannot be said that the statutes, once injected into the adversarial conflict, did not prejudice the defendants. Nor is it any answer to suggest that balancing the risk of prejudice against the asserted relevancy of the statutes here was a supportable discretionary judicial act. Unlike hearsay, which at times may be rendered admissible by necessity, the other proof of custom here eliminates the possibility of this justification.

For all these reasons, the order should be reversed and a new trial granted. In so ruling, we see no reason for a retrial of the damages issue. Instead, the new trial will be confined initially to the issue of liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the issue of apportionment of fault between the parties (cf. Ferrer v. Harris, 55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231).

Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion.

COOKE, C. J., and JASEN, GABRIELLI, JONES, WACHTLER and MEYER, JJ., concur.

Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in accordance with the opinion herein.

[1] The chart had been put in evidence in unredacted form as part of the plaintiff's medical proof.

[2] The organizations included the National Safety Council, the American National Standards Institute and the Consumer Safety Commission. One of the governmental publications, issued by the United States Health Department, was entitled Glass Door Injuries and Their Control and another, emanating from the United States Product Safety Commission, was entitled Hazard Analysis--Injuries Involving Architectural Glass.

[3] Section 389-o provides "It shall be unlawful within the state of New York to knowingly sell, fabricate, assemble, glaze, install, consent or cause to be installed glazing materials other than safety glazing materials in or for use in, any 'hazardous locations'."

"Safety glazing materials" as pertinent here, are defined as "glazing material, such as tempered glass, laminated glass, wire glass or rigid plastic, which meets the test requirements of the American National Standards Institute Standard (ANSI Z-97.1--1972), and which are so constructed, treated or combined with other materials as to minimize the likelihood of cutting and piercing injuries resulting from human contact with the glazing material". ( § 398-m, subd. [1].)

"Hazardous locations", as pertinent here, are defined as "those structural elements, glazed or to be glazed in residential buildings and other structures used as dwellings, * * * known as sliding glass doors * * * shower doors, bathtub enclosures * * * whether or not the glazing in such doors * * * and enclosures is transparent" ( § 398-m, subd. [2]).

[4] Subdivision 1 of section 78 of the Multiple Dwelling Law provides: "Every multiple dwelling * * * and every part thereof * * * shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section".

Page 783

Page 784

        Hank B. Campbell and Christine C. Daly of Lane, Trohn, Bertrand & Vreeland, P.A., Lakeland, and Raymond Ehrlich and Scott D. Makar of Holland & Knight, Jacksonville, for Petitioner.

        Douglas M. Fraley and Margie I. Fraley of Fraley and Fraley, P.A., Tampa, for Respondent.

        WELLS, Justice.

        We have for review Perry v. McDougald, 698 So.2d 1256 (Fla. 2d DCA 1997), which conflicts with Cheung v. Ryder Truck Rental, Inc., 595 So.2d 82 (Fla. 5th DCA 1992). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

        Lawrence McDougald sued Henry Perry and Perry's employer, C & S Chemical, Inc., (collectively referred to as respondents), for personal injuries sustained in an accident which occurred on July 26, 1990, on U.S. Highway 60 West, in Bartow, Florida. On July 26, McDougald was driving behind a tractor-trailer which was driven by Perry. The trailer was leased by C & S from Ryder Truck Rentals, Inc. As Perry drove over some railroad tracks, the 130-pound spare tire came out of its cradle underneath the trailer and fell to the ground. The trailer's rear tires then ran over the spare, causing the spare to bounce into the air and collide the windshield of McDougald's Jeep Wagoneer.

        The spare tire was housed in an angled cradle underneath the trailer and was held in place by its own weight. Additionally, the tire was secured by a four to six-foot long chain with one-inch links, which was wrapped around the tire. Perry testified that he believed the chain to be the original chain that came with the trailer in 1969. Perry also stated that, as originally designed, the chain was secured to the body of the trailer by a latch device. At the time of the accident, however, the chain was attached to the body of the trailer with a nut and bolt.

        Perry testified that he performed a pretrip inspection of the trailer on the day of the accident. This included an inspection of the chain, although Perry admitted that he did not check every link in the chain. After the accident, Perry noticed that the chain was dragging under the trailer. Perry opined that one of the links had stretched and slipped from the nut which secured it to the trailer. ¹ The judge instructed the jury on the doctrine of res ipsa loquitur. The jury subsequently returned a verdict in McDougald's favor.

        On appeal, the district court reversed with instructions that the trial court direct a verdict in respondents' favor. The district court concluded that the trial court erred by: (1) not directing a verdict on the issue of negligence; (2) instructing the jury on res ipsa loquitur; and (3) not directing a verdict on the issue of past and future loss of earning capacity. Perry v. McDougald, 698 So.2d 1256, 1258 (Fla. 2d DCA 1997). We granted McDougald's petition for review to resolve the conflict in the application of the doctrine of res ipsa loquitur. ² For the reasons expressed herein, we quash the decision below and approve the Fifth District's application of res ipsa loquitur to the circumstances of a wayward automobile wheel accident.

        This Court discussed the applicability of the doctrine of res ipsa loquitur in Marrero v. Goldsmith, 486 So.2d 530 (Fla.1986); City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261 (Fla.1982); and Goodyear Tire & Rubber Co. v. Hughes Supply,

Page 785

Inc., 358 So.2d 1339, 1341 (Fla.1978). In Marrero, we stated:

        Res ipsa loquitur is a Latin phrase that translates "the thing speaks for itself." Prosser and Keaton, Law of Torts § 39 (5th ed.1984). It is a rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances. "[T]he doctrine of res ipsa loquitur is merely a rule of evidence. Under it an inference may arise in aid of the proof." Yarbrough v. Ball U-Drive System, 48 So.2d 82, 83 (Fla.1950). In Goodyear, a products liability case, we explained the doctrine as follows:

It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.

Goodyear, 358 So.2d at 1341-42, (footnotes omitted).

        Marrero, 486 So.2d at 531.

        In concluding that it was reversible error for the trial court to give the res ipsa loquitur instruction, the Second District determined that "McDougald failed to prove that this accident would not, in the ordinary course of events, have occurred without negligence by the defendants." McDougald, 698 So.2d at 1259 (citing Goodyear ). The court explained that, "[t]he mere fact that an accident occurs does not support the application of the doctrine." Id. In support of the Second District's conclusion, respondents cite to Burns v. Otis Elevator Co., 550 So.2d 21 (Fla. 3d DCA 1989), in which the Third District stated:

To prevail at trial, plaintiff must still present sufficient evidence, beyond that of the accident itself, from which the jury may infer that the accident would not have occurred but for the defendants' breach of due care.

        Id. at 22. Respondents assert that this language means that res ipsa loquitur did not apply in this case because "there was no expert or other testimony or evidence that the failure of the safety chain and the spare tire's exit onto the roadway would not ordinarily occur in the absence of [respondents'] negligence." Answer Brief of Respondents at 19.

        The Second and Third Districts misread and interpret too narrowly what we stated in Goodyear. We did not say, as those courts conclude, that "the mere fact that an accident occurs does not support the application of the doctrine." Rather, we stated:

An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

        Goodyear, 358 So.2d at 1342 (emphasis added). Goodyear and our other cases permit latitude in the application of this common-sense inference when the facts of an accident in and of themselves establish that but for the failure of reasonable care by the person or entity in control of the injury producing object or instrumentality the accident would not have occurred. On the other hand, our present statement is not to be considered an expansion of the doctrine's applicability. We continue our prior recognition that res ipsa loquitur applies only in "rare instances."

        The following comments in section 328D of Restatement (Second) of Torts (1965) capture the essence of a proper analysis of this issue:

        c. Type of event. The first requirement for the application of the rule stated in this Section is a basis of past experience which reasonably permits the conclusion that such events do not ordinarily occur unless someone has been negligent. There are many types of accidents which commonly occur without the fault of anyone. The fact that a tire blows out, or that a man falls down stairs is not, in the absence of anything more, enough to permit the conclusion that there was negligence in inspecting the tire, or in the construction

Page 786

of the stairs, because it is common human experience that such events all too frequently occur without such negligence. On the other hand there are many events, such as those of objects falling from the defendant's premises, the fall of an elevator, the escape of gas or water from mains or of electricity from wires or appliances, the derailment of trains or the explosion of boilers, where the conclusion is at least permissible that such things do not usually happen unless someone has been negligent. To such events res ipsa loquitur may apply.

        d. Basis of conclusion. In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion. On the other hand there are other kinds of medical malpractice, as where a sponge is left in the plaintiff's abdomen after an operation, where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence.

        Restatement (Second) of Torts § 328D cmts. c-d (1965).

        We conclude that the spare tire escaping from the cradle underneath the truck, resulting in the tire ultimately becoming airborne and crashing into McDougald's vehicle, is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire. As the Fifth District noted, the doctrine of res ipsa loquitur is particularly applicable in wayward wheel cases. Cheung; see also Guerra v. W.J. Young Constr. Co., 165 So.2d 882 (La.Ct.App.1964); Dearth v. Self, 8 Ohio App.2d 33, 220 N.E.2d 728 (1966); Wilson v. Spencer, 127 A.2d 840, 841 (D.C.1956) ("Thousands of automobiles are using our streets, but no one expects the air to be filled with flying hubcaps."). We do not agree with respondent that Cheung can be properly distinguished on the basis that in Cheung the escaped tire was attached to the axle, whereas in this case the escaped tire was a spare cradled underneath the truck. Rather, common sense dictates an inference that both a spare tire carried on a truck and a wheel on a truck's axle will stay with the truck unless there is a failure of reasonable care by the person or entity in control of the truck. Thus an inference of negligence comes from proof of the circumstances of the accident.

        Furthermore, we do not agree with the Second District that McDougald failed to establish this element because "[o]ther possible explanations exist to explain the failure of the chain." McDougald, 698 So.2d at 1260. Such speculation does not defeat the applicability of the doctrine in this case. As one commentator has noted:

The plaintiff is not required to eliminate with certainty all other possible causes or inferences.... All that is required is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not.

        W. Page Keeton, et al., Prosser and Keaton on the Law of Torts, § 39, at 248 (5th ed.1984).

        Respondents also contend that the res ipsa instruction was inapplicable because McDougald failed to prove that direct evidence of negligence was unavailable. Respondents cite to Goodyear for the proposition that res ipsa is not applicable where "the facts surrounding the incident were discoverable and provable." This statement from Goodyear was made in a products liability tire blow-out case in which the plaintiff was in possession and control of the injury-causing device. In that case, the plaintiff, who was in possession of the product alleged to have been negligently manufactured, was in the best position to determine the alleged

Page 787

cause of the accident. Thus, the res ipsa inference was not applicable. Here, unlike Goodyear, we find that there was insufficient evidence available to McDougald. The likely cause of this accident, the chain and securing device, were in the exclusive possession of respondents and were not preserved. Moreover, this was not the basis upon which the Second District held res ipsa loquitur to be inapplicable.

        Accordingly, we quash the decision below, and remand this case with directions that the district court reinstate the trial court's judgment as to respondents' liability based upon the jury's verdict and for further proceedings consistent with the district court's decision on issues related to damages.

        It is so ordered.

        HARDING, C.J., and OVERTON, SHAW, KOGAN and PARIENTE, JJ., concur.

        ANSTEAD, J., concurs with an opinion.

        ANSTEAD, Justice, concurring.

        I fully concur in the majority opinion, and write separately to note that this case presents a classic scenario whereby an aged appellate opinion giving rise to a legal doctrine in the distant past still illuminates and informs today's society. The thread of common sense in human experience ties today's decision to an opinion voiced by Baron Pollock in the 1863 decision in Byrne v. Boadle, 2 Hurlet & C. 722, 159 Eng. Rep. 299 (Ex. 1863). In Byrne a pedestrian was struck by a barrel which fell from a window of the defendant's flour business. In reversing a directed verdict against the plaintiff, Pollock declared for the Court:

        We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

        We can hardly improve upon this explanation for our decision today. The common law tradition is alive and well.

---------------

1 Perry testified that the last time he saw the chain was when he left the trailer at a repair shop in Waycross, Georgia. As the district court opinion notes, however, spoliation of evidence was not an issue in this case.

2 We decline to address the other issues raised by the parties.

25 Cal.2d 486

Ybarra

v.

Spangard

L. A. No. 19067. In Bank.

Dec. 27, 1944.

JOSEPH ROMAN YBARRA, Appellant, v. LAWRENCE C. SPANGARD et al., Respondents.

COUNSEL

Marion P. Betty and Wycoff Westover for Appellant.

Parker & Stanbury, Harry D. Parker, Raymond G. Stanbury and Vernon W. Hunt for Respondents.

OPINION

GIBSON, C.J.

This is an action for damages for personal injuries alleged to have been inflicted on plaintiff by defendants during the course of a surgical operation. The trial court entered judgments of nonsuit as to all defendants and plaintiff appealed.

On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr. Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital, was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift, adjusted plaintiff for [25 Cal.2d 488] the operation, pulling his body to the head of the operating table and, according to plaintiff's testimony, laying him back against two hard objects at the top of his shoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff lost consciousness. When he awoke early the following morning he was in his hospital room attended by defendant Thompson, the special nurse, and another nurse who was not made a defendant.

Plaintiff testified that prior to the operation he had never had any pain in, or injury to, his right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the neck and the point of the right shoulder. He complained to the nurse, and then to Dr. Tilley, who gave him diathermy treatments while he remained in the hospital. The pain did not cease, but spread down to the lower part of his arm, and after his release from the hospital the condition grew worse. He was unable to rotate or lift his arm, and developed paralysis and atrophy of the muscles around the shoulder. He received further treatments from Dr. Tilley until March, 1940, and then returned to work, wearing his arm in a splint on the advice of Dr. Spangard.

Plaintiff also consulted Dr. Wilfred Sterling Clark, who had X-ray pictures taken which showed an area of diminished sensation below the shoulder and atrophy and wasting away of the muscles around the shoulder. In the opinion of Dr. Clark, plaintiff's condition was due to trauma or injury by pressure or strain, applied between his right shoulder and neck.

Plaintiff was also examined by Dr. Fernando Garduno, who expressed the opinion that plaintiff's injury was a paralysis of traumatic origin, not arising from pathological causes, and not systemic, and that the injury resulted in atrophy, loss of use and restriction of motion of the right arm and shoulder.

Plaintiff's theory is that the foregoing evidence presents a proper case for the application of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes the granting of a nonsuit improper. Defendants takes the position that, assuming that plaintiff's condition was in fact the result of an injury, there is no showing that the act of any particular defendant, nor any particular instrumentality, was the cause thereof. They attack plaintiff's [25 Cal.2d 489] action as an attempt to fix liability "en masse" on various defendants, some of whom were not responsible for the acts of others; and they further point to the failure to show which defendants had control of the instrumentalities that may have been involved. Their main defense may be briefly stated in two propositions: (1) that where there are several defendants, and there is a division of responsibility in the use of an instrumentality causing the injury, and the injury might have resulted from the separate act of either one of two or more persons, the rule of res ipsa loquitur cannot be invoked against any one of them; and (2) that where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the doctrine cannot apply. We are satisfied, however, that these objections are not well taken in the circumstances of this case.

The doctrine of res ipsa loquitur has three conditions: "(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134]; Moore v. Steen, 102 Cal.App. 723 [283 P. 833]; Armstrong v. Wallace, 8 Cal.App2d 429 [47 P.2d 740]; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228]; Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425]; see Shain, Res Ipsa Loquitur, 17 So.Cal.L. Rev. 187, 196.)

There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in cases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which [25 Cal.2d 490] arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget 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." (9 Wigmore, Evidence [3d. ed.], § 2509, p. 382; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 432]; Ross v. Double Shoals Cotton Mills, 140 N.C. 115 [52 S.E. 121; 1 L.R.A.N.S. 298]; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) In the last-named case, where an unconscious patient in a hospital received injuries from a fall, the court declared that without the doctrine the maxim that for every wrong there is a remedy would be rendered nugatory, "by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them."

The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability. (See Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228].) If this were the state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the principles of absolute liability, irrespective of negligence, in actions by persons suffering injuries [25 Cal.2d 491] during the course of treatment under anesthesia. But we think this juncture has not yet been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before us.

The condition that the injury must not have been due to the plaintiff's voluntary action is of course fully satisfied under the evidence produced herein; and the same is true of the condition that the accident must be one which ordinarily does not occur unless someone was negligent. We have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation. The decisions in this state make it clear that such circumstances raise the inference of negligence, and call upon the defendant to explain the unusual result. See (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App 352 [277 P. 134].)

The argument of defendants is simply that plaintiff has not shown an injury caused by an instrumentality under a defendant's control, because he has not shown which of the several instrumentalities that he came in contact with while in the hospital caused the injury; and he has not shown that any one defendant or his servants had exclusive control over any particular instrumentality. Defendants assert that some of them were not the employees of other defendants, that some did not stand in any permanent relationship from which liability in tort would follow, and that in view of the nature of the injury, the number of defendants and the different functions performed by each, they could not all be liable for the wrong, if any.

We have no doubt that in a modern hospital a patient is quite likely to come under the care of a number of persons in different types of contractual and other relationships with each other. For example, in the present case it appears that Doctors Smith, Spangard and Tilley were physicians or surgeans commonly placed in the legal category of independent contractors; and Dr. Reser, the anesthetist, and defendant Thompson, the special nurse, were employees of Dr. Swift and not of the other doctors. But we do not believe that either the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for [25 Cal.2d 492] failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would be liable. The defendant employers would be liable for the neglect of their employees; and the doctor in charge of the operation would be liable for the negligence of those who became his temporary servants for the purpose of assisting in the operation.

In this connection, it should be noted that while the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon him for their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and the fact that the duty of seeing that such mistakes do not occur is delegated to others does not absolve the doctor from responsibility for their negligence. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740]; Ault v. Hall, 119 Ohio St. 422 [164 N.E. 518, 60 A.L.R. 128]; and see, also, Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 233].)

It may appear at the trial that, consistent with the principles outlined above, one or more defendants will be found liable and others absolved, but this should not preclude the application of the rule of res ipsa loquitur. The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation. Plaintiff was rendered unconscious for the purpose of undergoing surgical treatment by the defendants; it is manifestly unreasonable for them to insist that he identify any one of them as the person who did the alleged negligent act.

The other aspect of the case which defendants so strongly emphasize is that plaintiff has not identified the instrumentality any more than he has the particular guilty defendant. Here, again, there is a misconception which, if carried to the extreme for which defendants contend, would unreasonably limit the application of the res ipsa loquitur rule. It should be enough that the plaintiff can show an injury resulting [25 Cal.2d 493] from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make.

An examination of the recent cases, particularly in this state, discloses that the test of actual exclusive control of an instrumentality has not been strictly followed, but exceptions have been recognized where the purpose of the doctrine of res ipsa loquitur would otherwise be defeated. Thus, the test has become one of right of control rather than actual control. See Metx v. Southern Pac. Co., 51 Cal.App.2d 260, 268 [127 P.2d 670].) In the bursting bottle cases where the bottler has delivered the instrumentality to a retailer and thus has given up actual control, he will nevertheless be subject to the doctrine where it is shown that no change in the condition of the bottle occurred after it left the bottler's possession, and it can accordingly be said that he was in constructive control. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453 [150 P.2d 436].) Moreover, this court departed from the single instrumentality theory in the colliding vehicle cases, where two defendants were involved, each in control of a separate vehicle. (See Smith v. O'Donnell, 215 Cal. 714 [12 P.2d 933]; Godfrey v. Brown, 220 Cal. 57 [29 P.2d 165, 93 A.L.R. 1072]; Carpenter, 10 So.Cal.L.Rev. 170.) Finally, it has been suggested that the hospital cases may properly be considered exceptional, and that the doctrine of res ipsa loquitur "should apply with equal force in cases wherein medical and nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries." (Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231]; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 435], where the court refers to the "instrumentalities" as including "the unconscious body of the plaintiff.")

In the face of these examples of liberalization of the tests for res ipsa loquitur, there can be no justification for the rejection of the doctrine in the instant case. As pointed out above, if we accept the contention of defendants herein, there will rarely be any compensation for patients injured while unconscious. A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e.g., preparation for surgery by nurses [25 Cal.2d 494] and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or an independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. It is rather a good reason for re-examination of the statement of legal theories which supposedly compel such a shocking result.

We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

The judgment is reversed.

Shenk, J., Curtis, J., Edmonds, J., Carter, J., and Schauer, J., concurred.