Citation Numbers: 38 Misc. 2d 36
Judges: Wemple
Filed Date: 1/31/1963
Status: Precedential
Modified Date: 2/5/2022
In this action the plaintiff is seeking damages for injuries she allegedly sustained while she was being treated as a patient by the defendant, Dr. Richard Parker, D. D. S. The facts of the case are in relative harmony as they are set forth in the affidavits of the parties filed herein. It appears that on or about June 5, 1962 defendant Parker, a dentist, assisted by defendant Kline, was in the process of filling a cavity in plaintiff’s tooth. During the treatment it became necessary to change a tool in the drill. Also, as part of the operation phenol was being utilized to debride (clean) the tooth. This liquid, also known as carbolic acid, was contained in a small bottle and had been placed on a work table near the patient. As the elbow of the unit was swung by the assistant, it knocked over the bottle of acid, some of which spilled on Mrs. Richardson’s right leg causing the injuries for which she now sues.
From the above facts plaintiff alleges sole negligence of the defendants. On the same facts defendants contend that the occurrence was a pure accident. The essential facts and admissions set forth in defendant’s affidavit do not sustain defendants’
The issue as to mitigation of damages can be determined later in further proceedings.
Accordingly, summary judgment is awarded to the plaintiff on the issue of negligence. As to the amount of damages, this is to be assessed by a trial before the court and a jury.