Sadler v. Sisters of Charity of Providence in Oregon, Inc.

426 P.2d 747, 247 Or. 50, 1967 Ore. LEXIS 448

Opinions

DENECKE, J.

This is an action for personal injuries. After opening statements by counsel defendant moved for an involuntary nonsuit. The court granted the motion and plaintiff appeals.

Footnotes

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①

The statement of facts most favorable to plaintiff is as follows: Plaintiff was injured in an automobile collision and taken unconscious to a hospital. The hospital . resident examined plaintiff and found no bone damage. The hospital mistakenly believed the plaintiff to be in some state of intoxication, whereas he was in a state of semi-consciousness caused by a brain concussion. The hospital negligently released plaintiff when he was unable to care for himself.

The plaintiff suffered amnesia from the time of the automobile collision until four days later. At such time he was found in bed in his house trailer. It is not known how long he was there. When he was found plaintiff had an injury to his right shoulder and frac tures of Ms pelvis. The cause, time or other circumstances of the injury are unknown. Nothing is known of plaintiff’s actions from the time he left the hospital until he was found in his trailer.

The problem is one of causation, — physical cause or cause in fact. Was defendant’s negligence a cause of plaintiff’s injury? There is no direct evidence upon this issue. Is there sufficient indirect evidence to warrant submitting the issue to the jury?

Plaintiff’s syllogism is as follows: The defendant hospital negligently discharged plaintiff although he was not able to care for himself. One who is not able to care for himself is likely to be injured; therefore, plaintiff’s injury probably was caused by his not being able to care for himself. Based upon this syllogism plaintiff contends “the evidence is sufficient to raise an inference that it was more probable that defendant’s negligence contributed to plaintiff’s injury than not.”

Plaintiff relies heavily upon the rationale of Eitel v. Times, Inc., 221 Or 585, 594, 352 P2d 485 (1960), particularly the statement in that opinion:

“We are of the opinion, therefore, that although defendant might suggest some probable causes which would insulate defendant’s negligence as a causal factor, there were in the present case sufficient facts to indicate that it was more probable than not that defendant’s conduct was the cause of plaintiff’s injury. Plaintiff is not required to eliminate all other possible causes in order to get her case to the jury. # * 221 Or at 596.

In that case we went on to state:

“* * * We have only our own experiences, observations and understanding of what commonly happens from which to judge whether the infer enees drawn from the circumstances connect up defendant’s conduct to the injury more strongly than the conduct of some other person.” 221 Or at 597.

Based upon “our own experiences, observations and understanding of what commonly happens” we conclude that under the circumstances here present a jury would have no basis upon which to decide that it is more probable that plaintiff was injured because he was not able to take care of himself than from some other cause for which defendant is not responsible.

We agree with plaintiff, and defendant does not appear to disagree, that if plaintiff were injured by some third party’s negligent or intentional act, which came about because of plaintiff’s inability to care for his own safety, defendant’s negligence could nevertheless be a cause of plaintiff’s injuries. For example, if plaintiff, unable to comprehend his danger, wandered into a busy street in front of a speeding vehicle, the defendant’s negligence could be a cause of his injuries. On the other hand, if the plaintiff were crossing a street at a controlled intersection, in the crosswalk, and in response to the “walk” signal, and was struck by a car running the red light, there would be no causal connection between defendant’s negligence and plaintiff’s injuries.

Plaintiff is correct that one unable to care for himself is more likely to be injured. This is the reason defendant’s conduct is negligent, i.e., defendant acted in a manner which created an unreasonable risk of harm to plaintiff. However, the fact that defendant’s conduct made it more likely that plaintiff would be injured does not of itself raise the inference that it is more probable than not that plaintiff was injured because he was unable to care for his own safety.

We know from onr experience that a substantial number of persons are injured despite their taking reasonable steps for their own safety. We do not know whether injuries occurring under such circumstances are in the majority or in the minority. The incidence of such injuries probably depends, at least partially, upon the other circumstances surrounding the infliction of the injury. Was the injured person a pedestrian, a vehicle passenger, or a vehicle driver? Did the injury occur at home, at work, or at recreation? Was the injury inflicted during daylight or darkness? We know none of the circumstances.

We conclude that a jury could not, without pure speculation, determine that it was more probable that defendant’s negligence was a cause of plaintiff’s injuries and, therefore, the issue of causation should not be submitted to the jury.②

Affirmed.

This is an appropriate occasion for the disposition of the issue upon opening statements, unlike Palmer v. Murdock, 233 Or 334, 378 P2d 271 (1963). Plaintiff’s counsel commendably stated that his opening statement was as favorable a statement of his client’s claim as he could hope to establish by the evidence.

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The majority decision in Gardner v. National Bulk Carriers, Inc., 340 F2d 284 (4th Cir 1962), cited by the plaintiff, is distinguishable upon its facts, although perhaps not upon its rationale. It was a Jones Act case and such cases required less proof of causation than common law negligence cases. Rogers v. Missouri Pacific R. Co., 352 US 500, 77 S Ct 443, 1 L ed2d 493 (1957). We would not apply the rationale of that case to the issue of causation in common-law negligence cases.