Eversole v. Oklahoma Hospital Founders Ass'n , 62 O.B.A.J. 2423 ( 1991 )

SUMMERS, Justice,

dissenting.

Today’s result is a judicial non sequitur. The only evidence in the case attributing plaintiff’s injury to hospital’s fault was that nurse Parris let him fall while she ambulated him between bed and bathroom. The jury found nurse Parris free of fault. The majority somehow bootstraps up the verdict against the hospital by misusing the doctrine of res ipsa loquitur. Properly applied, res ipsa loquitur is a rule used to establish the presence of negligence, not a rule permitting a finding of fault-free liability. See Turney v. Anspaugh, 581 P.2d 1301, 1304 (Okla.1978).

The negligence sought to be established under the doctrine here was that the hospital injured plaintiff by letting him fall. The majority concludes res ipsa loquitur is satisfied by assigning Nurse Parris the role of “instrumentality within the control of the hospital.” But the jury found the “instrumentality” herself was free of negligence. Nothing else hooks up the hospital to the cause of the fall. Under the evidence, the asserted fact that the hospital was understaffed, even if true, was not a causal factor in the fall. Nor was there any evidence that the hospital had incorrectly taught nurse Parris how to ambulate patients. When the jurors found nurse Parris free of negligence in letting plaintiff fall they eliminated any possible way a verdict against the hospital, based on the hospital’s negligence, could properly be affirmed on the evidence before them.

A verdict so internally inconsistent as this should not be allowed to afford judgment for either party. See Chicago, R.I. & P. Ry. Co. v. Austin, 43 Okl. 698, 144 P. 1069 (1914), wherein the plaintiff sought recovery on the theory of respondeat superior. There we remanded for a new trial when the jury’s verdict was in favor of the defendant conductor in charge of the train but against the railroad. Rather than translating this verdict into a victory for the hospital, as did the Court of Appeals, or for the plaintiff, as does the majority, I would reject it as being hopelessly irreconcilable and remand the matter for another trial as per Austin, supra, 144 P. at 1071.

I am authorized to state that Vice Chief Justice HODGES and Justice SIMMS join in these views.