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JOHNSON v. LCA VISION, INC

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 3, 2001
285 A.D.2d 971 (N.Y. App. Div. 2001)

Opinion

(743) CA 00-02688

July 3, 2001.

Appeal from Judgment of Supreme Court, Erie County, Kane, J. — Negligence.

Judgment unanimously affirmed without costs.

PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND LAWTON, JJ.


Memorandum:

Supreme Court properly granted plaintiff's request to charge the doctrine of res ipsa loquitur with respect to defendants LCA Vision, Inc. and Claus M. Fichte, M.D. ( see, Fogal v. Genesee Hosp., 41 A.D.2d 468, 474-477). In order to establish his entitlement to that charge, plaintiff was not required to eliminate conclusively "the possibility of all other causes of the injury. It [was] enough that the evidence * * * afford[ed] a rational basis for concluding that 'it [was] more likely than not' that the injury was caused by [the] negligence [of those defendants]" ( Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, quoting Restatement [Second] of Torts § 328 D, comment e]). The award of damages for future pain and suffering for plaintiff's eye injury does not deviate materially from what would be reasonable compensation ( see, CPLR 5501 [c]; Galawanji v. 40 Sutton Place Condominium, 262 A.D.2d 55, lv denied 94 N.Y.2d 756).


Summaries of

JOHNSON v. LCA VISION, INC

Appellate Division of the Supreme Court of New York, Fourth Department
Jul 3, 2001
285 A.D.2d 971 (N.Y. App. Div. 2001)
Case details for

JOHNSON v. LCA VISION, INC

Case Details

Full title:KURT A. JOHNSON, PLAINTIFF-RESPONDENT, v. LCA VISION, INC.…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 3, 2001

Citations

285 A.D.2d 971 (N.Y. App. Div. 2001)
727 N.Y.S.2d 674