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District Court of Appeal, Second District, Division 1, California.

Jerry Gene FOWLER, a minor, by her Guardian ad litem, William Randolph Fowler, Plaintiff and Appellant, v. Annabelle SEATON, doing busiess as Happy Day Nursery School, and Annabelle Seaton, individually, Defendant and Respondent.

Civ. 27256.

Decided: March 10, 1964

William P. Camusi, Los Angeles, for plaintiff and appellant. Parker, Stanbury, McGee, Peckham & Garrett and Francis J. Cronin, Los Angeles, for defendant and appellant.

The minor plaintiff, Jenny Gene Fowler, by her guardian (her father, William R. Fowler), sought damages for personal injuries. She appeals from a judgment of nonsuit.

As to the other plaintiff (father of the minor), who sought recovery of amounts paid for medical treatment of the minor, the action was dismissed upon stipulation. (Apparently, the reason for such dismissal was that the action was filed more than a year after the injury.)

Prior to calling this case for a jury trial, the judge and the attorneys held a conference in chambers wherein the judge was advised as to the basic facts of the case and the contentions of plaintiff, including the contention that the doctrine of res ipsa loquitur was applicable. It appears from appellant's brief that the judge indicated that it might be necessary to grant a nonsuit at the close of plaintiff's case. Whereupon, the judge and the attorneys agreed that it would save time if the matter of nonsuit were to be based upon the opening statement by the attorney for plaintiff. The attorney for plaintiff stated that his opening statement would be a complete summary of the basic facts and that he did not feel that the actual trial of the case would add to the basic statement of facts recited in his opening statement. The position of the attorney for plaintiff was that a motion for nonsuit should not be granted, but he was willing that the judge decide the issue of nonsuit at the close of the opening statement so as to avoid the necessity of presenting the evidence to a jury. It was stipulated that it would be deemed that the jury had been called and impaneled.

The opening statement of the attorney for plaintiff was in substance as follows:

Minor plaintiff, Jenny Gene Fowler, began attending the Happy Day Nursery School in September, 1958. It was a pre-school nursery, where children were left for the day by their parents, and it consisted of a house and a little children's playground with such playthings as a swing, slide, and similar paraphernalia. The nursery is located in Van Nuys, California, and was owned and operated at all times relevant by the defendant, Annabelle Seaton.

The nursery made a weekly monetary charge to the parents of such pre-school-age children who attended there. It was a private school and the defendant was at all times licensed to operate such a school.

On January 21, 1959, the minor plaintiff, Jenny, was taken to the said nursery by her mother and left in the charge and custody of the defendant, about 9 a. m. At that time, Jenny was three years and ten months of age. When her mother left her in the custody of the defendant on that morning, Jenny was in good health, sound of limb and body, and had no marks on her body.

Jenny's mother picked her up at the nursery at approximately 6 p. m. of said day.

On the way home that evening, and for the remainder of the evening, the child appeared downcast or depressed and stayed close to her mother at all times. At the dinner table, at approximately 7 p. m., Jenny's father noticed that the child's eyes were crossed. The child's hair was arranged in bangs over her forehead and her forehead was not visible. At that time, the mother approached the child to look into the child's eyes. The mother pushed the child's hair away from the forehead, and for the first time, noticed a sizeable round protruding bump on the child's forehead.

Jenny had been in the mother's immediate presence ever since the mother had picked her up at the nursery school, and the child had not received any injury nor had she been in any accident from the time she was picked up at the nursery school until her parents observed the cross-eyes and bump on the child's forehead at the dinner table.

The mother immediately called the defendant at the nursey school and asked what had happened to plaintiff at school that day. Defendant replied that another child had struck the plaintiff.

The attorney for the minor plaintiff took the deposition of the defendant, Annabelle Seaton, who testified in substance as follows:

Near the end of the day, Defendant had four or five children in a room seated in a semi-circle on the floor looking at television while the children were waiting to be picked up by their parents. Minor plaintiff was one of the children in this group. None of the children in this group was more than five years of age. Defendant was in the room somewhat behind the children at the time observing them, when suddenly, without warning, a little boy named Bobbie Schimp, seated on the floor next to minor plaintiff, hit minor plaintiff in the forehead. Bobbie Schimp had nothing in his hands. (End of deposition testimony.)

Sometime early the following morning, January 22, 1959, minor plaintiff had a nose bleed, was vomiting, and had a slight temperature. From the evening of January 21, 1959, Jenny's eyes would intermittently cross and uncross until, within several months, the child's eyes were constantly crossed.

The minor plaintiff had never had cross-eyes before the accident. Plaintiff will prove by a competent medical doctor that Jenny suffered a concussion of the brain on January 21, 1959, and that the shock of said blow to the forehead resulted in her eyes becoming crossed. The crossing of plaintiff's eyes is explained as follows:

Some children have a latent tendency to crossing of the eyes. The fusion mechanism which causes a person's eyes to function in parallel unison and see singularly is very delicately balanced in a small child the age of minor plaintiff, and a blow or deep shock which might result from a blow causes the fusion mechanism to cease to function properly and the delicate muscles of the eyes become imbalanced.

As a result of the accident, Jenny has had surgery to the right eye. Her eyes are still crossed. One additional operation will be necessary and possibly a third; cosmetically, the appearance of plaintiff's eyes can be improved to normal or almost normal position, although she may have some impairment of good sight.

Either because of the shock or fright resulting from the accident or because of the age of plaintiff, she has been unable to state or give any information concerning the accident. No information is available from the other children because of their tender years.

Plaintiff will prove through a medical doctor that the blow on the forehead and resulting concussion to minor plaintiff on January 21, 1959, was of such a force that it would have been impossible for a boy five years of age or less sitting on the floor with nothing in his hands to have delivered a blow of such force as to have caused the said injuries to minor plaintiff. Thus, the only inference that can be drawn is that the defendant is not telling what really happened that day at the nursery school and the only reasonable inference which can be drawn is that the defendant did not exercise reasonable care for the safety of the children in her care and custody, and more specifically with reference to minor plaintiff. (End of opening statement.)

Thereupon, defendant's motion for a judgment of nonsuit was granted.

Appellant contends that the facts recited in the opening statement were sufficient to establish a prima facie case of negligence on the part of the defendant as proprietor and operator of the nursery school, and that she was entitled to submit the case for determination by a jury.

For the purposes of considering the motion for a nonsuit, it is to be assumed that statements of fact in the opening statement are true. It therefore appears that the child, three years and ten months of age, was in sound physical condition and did not have a mark on her body when she was left at the nursery school and in the charge, control, and supervision of the defendant on the morning of said day; that in the evening of that day, when the child was taken from the nursery, her eyes were crossed and there was ‘a sizeable round protruding bump’ on her forehead; that the child did not receive any injury after she was taken from the nursery; the next morning the child's nose was bleeding, she was vomiting, and she had a slight ‘temperature’ (fever); for several months after January 21 the child's eyes would cross and uncross intermittently, and then her eyes were crossed constantly—and are still crossed; she did not have cross-eyes before she was left at the nursery on said day; on that day she suffered a blow on her forehead and a concussion of her brain, and the shock of the blow resulted in her eyes becoming crossed; that the blow on her forhead, resulting in such injuries, was of such force that it could not have been delivered by a five-year-old boy who was sitting on the floor with nothing in his hands; the child Jenny, by reason of her age, or by reason of the shock or fright resulting from the accident, has been unable to state any information concerning the accident; and no information is available from the other children, by reason of their tender years; all the children were under five years of age; Jenny's parents paid money for the privilege of sending Jenny to defendant's private school.

Appellant asserts that the doctrine of res ipsa loquitur is applicable herein, that under the facts stated an inference of negligence on the part of defendant arises which creates a prima facie case, and that a nonsuit should not have been granted.

Respondent (defendant) asserts in effect that such doctrine is not applicable, because the ‘probability factor’ of the doctrine is not present, that is, the factual situation herein is not such that, in the light of common experience, it can be said that the injury was ‘more likely than not’ the result of defendant's negligence. In Tucker v. Lombarado, 47 Cal.2d 457, 465, conditions: ‘(1) the accident must be of no such balance of probabilities in favor of negligence can be found, res ipsa loquitur does not apply.’ Respondent also asserts that even if it be assumed that the probability factor is present, the facts stated do not create a prima facie case.

Rules or conditions with reference to the applicability of the doctrine of res ipsa loquitur are stated in Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687. It is stated therein (25 Cal.2d 489, 154 P.2d p. 689): ‘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.’'

In the Ybarra case, supra, plaintiff sustained a shoulder injury while unconscious (under anesthesia) during an appendectomy, and the court held that the res ipsa loquitur doctrine was applicable. It was said therein (25 Cal.2d pp. 489–490, 154 P.2d p. 689), in referring to a 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,’ that: ‘The result [of such tendency] 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 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.’'

In Myers v. Moore, 240 Mo.App. 726, 217 S.W.2d 291, the mother of a five-weeks'-old child left the child at a nursery which was operated by defendant, and the mother paid money to defendant for services to be rendered in caring for the child At that time the child was in good physical condition. The next morning, when the mother returned to the nursery, a nurse took her to the child who was in a crib. The mother noticed that blood was on the child's feet and left hand and on the sheet. Later that day, when she again returned to the nursery, there were bandages on the arms, hands, feet, and body of the child. After a physician had examined the child at the request of the mother, the child was taken to a hospital. The physician testified that the child had received several bites, particularly on the left foot; and that the little toe on the left foot had been chewed upon and the distal portion of that toe was gone. A hospital record stated, among other things, that there were multiple abrasions of the skin ‘due to animal bites.’ The opinion in that case states there was considerable talk at the trial that the animal was a rat, but the evidence disclosed nothing further than that it was an animal. Defendant therein introduced no testimony, but requested an instruction for a directed verdict in defendant's favor. The request was denied. The verdict and the judgment were in favor of the plaintiff (child). The appellant therein (defendant) contended on appeal that the doctrine of res ipsa loquitur was not applicable; that even if the injuries were caused by an animal, there was no evidence that defendant had any control over it. The court therein said: ‘Defendant owned, controlled and operated the premises and nursery; they were under her exclusive management and control, and the animal could not have had access to the plaintiff if the premises had been properly maintained and operated.’ It was also said therein: ‘In the case at bar the facts bespeak negligence on the part of defendant in no uncertain terms. It involves an infant, who could not have known what occurred, being placed in the hands of defendant who held herself out as a person skilled in the care of children, and receiving injuries of a most unusual character and under circumstances that no one could have any knowledge of unless it be the defendant. Every consideration of reason and justice required defendant to come forward with some explanation of the occurrence.’

In the Myers case, just cited, the child was five weeks old and, of course, did not know what occurred. In the present case the child was three years and ten months of age, but, according to the opening statement which is deemed to be true, the child, by reason of her age or the shock or fright, could not give any information concerning the accident. It thus appears that in the present case, as in the Myers case, it was established that the child could not give any information concerning the injuries. Also, as in the Myers case, the defendant controlled and operated the nursery for the purpose of caring for the children who were left in her charge and control. According to the deemed-to-be-true opening statement, the child was injured while at the nursery during the time the child was in the charge and control of defendant. No information regarding the injuries was available from the other children, by reason of their tender years.

Where a judgment is rendered upon a motion for nonsuit, ‘[a]ll presumptions, inferences and doubtful questions must be construed most favorably to the plaintiff.’ (Hinds v. Wheadon, 19 Cal.2d 458, 460, 121 P.2d 724, 725; Doke v. Pacific Crane & Rigging, Inc., 80 Cal.App.2d 601, 606, 182 P.2d 284.) In 37 California Law Review, Dean Prosser states (p. 196), in discussing the subject of Res Ipsa Loquitur, that ‘the inference [of negligence] is not required to be an exclusive or compelling one. It is enough that the court cannot say that reasonable men could not draw it.’ The opening statement herein presents a proper case for the application of the doctrine of res ipsa loquitur. From the facts recited in the opening statement, an inference of negligence on the part of the nursery could be drawn by a jury.

The court erred in granting the motion for a nonsuit.

The judgment of nonsuit is reversed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.

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