Chauvin v. Krupin

California Court of Appeal Feb 1, 1935 No. Civ. 8809Published

Before: Shinn

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Holding. The court held that the doctrine of res ipsa loquitur was properly applied because the injury occurred while the defendants had exclusive control of the devices, and the original complaint sufficiently alleged negligence to support the judgment.

Issues

Whether the plaintiff was precluded from relying on the doctrine of res ipsa loquitur due to the specific allegations of negligence in the complaint.
Whether the trial court erred in allowing an amendment to the complaint to state negligence in more general terms.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The devices used in the process were under the exclusive control of the defendants. The injury was one which in the natural course of things would not have occurred had defendants used due care”

“Where specific acts of negligence are alleged, plaintiff is entitled to the benefit of the res ipsa loquitur doctrine if the acts proved are such as to raise a presumption of negligence.”

SHINN, J.,

pro tem.

Plaintiff recovered judgment against defendants Krupin, proprietors of a beauty parlor, on account of a burn inflicted upon her scalp while she was

[324]

receiving a so-called beauty treatment known as a permanent wave. Defendants appeal and urge as the sole ground for reversal of the judgment that the specific allegations of negligence charged in the complaint were not proved, and that plaintiff was erroneously allowed to recover under the doctrine of

res ipsa loquitur,

after an amendment of the complaint made at the time of a motion for nonsuit. In discussing this point it will be necessary to make reference to the process used by defendants in placing waves in plaintiff’s hair.

The curling of the hair was accomplished by means of electrically heated curlers attached to locks of hair, and separated from the scalp by protecting devices which are supposed to keep a space of one and one-quarter inches between the heater and the scalp. During the process plaintiff experienced a burning sensation at a particular point upon her head. She complained to defendant Nathan Krupin and he put some cotton at the place indicated. It developed later that plaintiff had received a severe burn during the operation.

The original complaint alleged the employment of defendants, their undertaking the work of curling plaintiff’s hair, and that the defendants negligently failed to fix or adjust the curling devices so as to protect plaintiff’s head, but fixed, adjusted and attached the same so as to permit and cause the same to burn the plaintiff; that they negligently performed their services in the manner of their use of the devices employed, and negligently used and manipulated the same and the heating elements thereof, and failed to protect plaintiff’s head from the heating devices so that the same were caused to and did burn plaintiff’s hair and head. At the close of plaintiff’s case a motion for non-suit was made, upon the ground that the complaint alleged specific acts of negligence which had not been proved, and that plaintiff was not entitled to rely upon the doctrine of

res ipsa loquitur.

Chauvin v. Krupin

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SHINN, J.,

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