George v. City of New York

Appellate Division of the Supreme Court of New York

George v. City of New York

22 A.D.2d 70, 253 N.Y.S.2d 550, 1964 N.Y. App. Div. LEXIS 2836

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 5, 1964

StatusPublished

Cited by3 cases

This text of 22 A.D.2d 70 (George v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

George v. City of New York, 22 A.D.2d 70, 253 N.Y.S.2d 550, 1964 N.Y. App. Div. LEXIS 2836 (N.Y. Ct. App. 1964).

Pincite

Opinion

Per Curiam.

Plaintiff is the administratrix of John George, deceased. On May 20, 1958, deceased was admitted to Francis Delafield Hospital. He was suffering from nausea, fits of vomiting and generalized weakness. In the course of a barium enema, [71]*71observed by the attending physicians by means of fluoroscopy, the barium perforated the wall of the bowel, discharging a large quantity of barium and the bowel content into the peritoneal cavity. An operation to evacuate this matter from the cavity and repair the bowel wall was performed immediately but did not save the patient, who died the following day The foregoing summarizes all the significant evidence in the case.

Obviously there was no proof of negligence either in the administration of the enema or in the following operation. In fact, no liability is sought to be predicated on the latter. Nor is there any proof of malpractice in the sense that a barium enema was contraindicated by good medical practice. Plaintiff claims to have established a prima facie case by means of the rule of res ipsa loquitur. We do not believe that the rule has any application to these facts.

Ordinarily, the happening of an accident is no proof that it was caused by the defendant’s negligence (Shkoditch v. 150 William St. Corp., 17 A D 2d 168; Kaplan v. City of New York, 10 A D 2d 319). It is only where two elements combine that a contrary determination is permissible. Those elements are where the defendant has exclusive control of the agency which caused the accident and where common experience shows that an accident of the character in question would not have happened unless there was negligence in the operation or control of that agency (Foltis, Inc. v. City of New York, 287 N. Y. 108, 117; Neuhoff v. Retlaw Realty Corp., 289 N. Y. 293). As regards the human body, its capacities and tolerances, it is a rare case where common knowledge is sufficient to show that an accident would not have happened without negligence. Clearly, this is not one of those rare cases.

The judgment should be unanimously reversed on the law and the facts, and complaint dismissed, with costs to appellant.

Botéis, P. J., Breitel, Rabin, Eager and Steuer, JJ., concur.

Judgment unanimously reversed on the law and on the facts, with $50 costs to appellant, and the complaint dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Plaintiff is the administratrix of John George, deceased. On May 20, 1958, deceased was admitted to Francis Delafield Hospital. He was suffering from nausea, fits of vomiting and generalized weakness. In the course of a barium enema, [71]*71observed by the attending physicians by means of fluoroscopy, the barium perforated the wall of the bowel, discharging a large quantity of barium and the bowel content into the peritoneal cavity. An operation to evacuate this matter from the cavity and repair the bowel wall was performed immediately but did not save the patient, who died the following day The foregoing summarizes all the significant evidence in the case.

Obviously there was no proof of negligence either in the administration of the enema or in the following operation. In fact, no liability is sought to be predicated on the latter. Nor is there any proof of malpractice in the sense that a barium enema was contraindicated by good medical practice. Plaintiff claims to have established a prima facie case by means of the rule of res ipsa loquitur. We do not believe that the rule has any application to these facts.

Ordinarily, the happening of an accident is no proof that it was caused by the defendant’s negligence (Shkoditch v. 150 William St. Corp., 17 A D 2d 168; Kaplan v. City of New York, 10 A D 2d 319). It is only where two elements combine that a contrary determination is permissible. Those elements are where the defendant has exclusive control of the agency which caused the accident and where common experience shows that an accident of the character in question would not have happened unless there was negligence in the operation or control of that agency (Foltis, Inc. v. City of New York, 287 N. Y. 108, 117; Neuhoff v. Retlaw Realty Corp., 289 N. Y. 293). As regards the human body, its capacities and tolerances, it is a rare case where common knowledge is sufficient to show that an accident would not have happened without negligence. Clearly, this is not one of those rare cases.

The judgment should be unanimously reversed on the law and the facts, and complaint dismissed, with costs to appellant.

Botéis, P. J., Breitel, Rabin, Eager and Steuer, JJ., concur.

Judgment unanimously reversed on the law and on the facts, with $50 costs to appellant, and the complaint dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

22 A.D.2d 70, 253 N.Y.S.2d 550, 1964 N.Y. App. Div. LEXIS 2836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-city-of-new-york-nyappdiv-1964.

Opinion

Related

Cite This Page — Counsel Stack