Elizabeth Koll et al., Respondents, v. Cross County Hospital, Appellant

Elizabeth Koll et al., Respondents, v. Cross County Hospital, Appellant. [MAJORITY] The record presents triable issues of fact as to the negligence of the defendant hospital and as to the contributory negligence of the patient, plaintiff Elizabeth Koll. Beldock, Acting P. J., Kleinfeld, Christ and Brennan, JJ., concur; [DISSENT — Pette, J.,] Pette, J., dissents and votes to affirm the order with the following memorandum: While a patient at the hospital, the plaintiff wife, Elizabeth Koll, was undergoing certain diagnostic X-ray tests on an X-ray table which was in charge of an employee of the hospital and which was manipulated by him exclusively. After the completion of the tests he caused the table to be tilted and lowered to its original position; and, during this process, a foot guide on the table broke, causing the patient to fall from the table and to be injured. The first cause of action is by the patient to recover damages for her personal injuries. The second is by her husband to recover damages for the loss of her services. Both are based on allegations of the hospital’s negligence and on the patient’s freedom from contributory negligence. In my opinion, under the circumstances here summary judgment was properly granted. The instrumentality (that is, the X-ray equipment and table) which caused the accident was under the complete dominion and control of the hospital and its X-ray technician. Therefore the doctrine of res ipsa loquitur relied on by plaintiffs, is applicable; and the mere happening of the accident easts upon the hospital the burden of coming forward with an explanation as to the reason for its occurrence. The hospital, however, has failed to offer any explanation; it asserts only that the patient fell “ for some unknown reason.” In the absence of any explanation by the hospital, the only rational conclusion—a conclusion which may properly be drawn as matter of law — is that the accident happened because of its negligence and without the patient’s contributory negligence.