Opinion
C.A. No. CPU4-16-000257
10-10-2016
ANN CROTEAU, Plaintiff, v. TOWN & COUNTRY SALON, Defendant.
Ms. Ann Croteau 341 Blackbird Greenspring Road Smyrna, DE 19977 Plaintiff Sean A. Dolan, Esq. Law Office of Cynthia G. Beam 131 Continental Dr., Suite 407 Newark, DE 19713 Attorneys for Defendant
Ms. Ann Croteau
341 Blackbird Greenspring Road
Smyrna, DE 19977
Plaintiff Sean A. Dolan, Esq.
Law Office of Cynthia G. Beam
131 Continental Dr., Suite 407
Newark, DE 19713
Attorneys for Defendant MEMORANDUM OPINION AND ORDER WELCH, J.
The matter before the Court is a negligence action arising out of Defendant's hair styling procedure that allegedly resulted in severe damage to Plaintiff's hair. Trial was held before this Court on July 13 and September 20, 2016. On September 20, 2016, this Court reserved its decision. This is the Court's Final Memorandum Opinion and Order after consideration of the pleadings, oral and documentary evidence submitted at trial, the parties' arguments, and the applicable law. For the following reasons, the Court enters judgment in favor of Defendant.
I. FACTUAL & PROCEDURAL BACKGROUND
A. The Parties' Assertions
In her April 23, 2014 pleadings, Plaintiff, Ann Croteau ("Plaintiff) alleged that Defendant, Town & Country Salon ("Defendant") was negligent when one of its agents performed a ten to fifteen minute "perm" on Plaintiff's hair. Upon arriving home, Plaintiff's hair began drying and "looked [and] felt like a dolls hair that had been in an attic for 100 years." Her hair took three days to dry, falling out each time Plaintiff attempted to brush or fix her hair. Plaintiff was extremely distraught and accused Defendant of causing her hair loss.
Complaint of Plaintiff at 1.
On February 22, 2016, Defendant admitted to performing a perm on Plaintiff in Defendant's Answer, but denied Plaintiff's substantive allegations.
B. The Trial
Based on the testimony of the witnesses who testified at trial, the Court finds the facts to be as follows.
On July 13, 2016, Plaintiff asserted in her opening statements that her hair was damaged as a result of receiving a spiral perm at Defendant's location. She stated that she would call two witnesses to chronicle the state of her hair before and after she visited Defendant's location. Defendant's opening statements asserted that the hair stylist followed routine procedures when styling Plaintiff's hair. Defendant believed Plaintiff's hair was "not in the best condition" prior to her visiting Defendant's location, and requested Plaintiff supply expert testimony to explain hair stylist procedure.
Because Plaintiff was pro se, the Court requested argument from the parties as to the specific cause of action. After Plaintiff reiterated her grievance and Defendant responded that he was not entirely clear on Plaintiff's cause of action, the Court liberally construed the complaint to allege negligence, breach of contract, and breach of warranty. Plaintiff called her first witness, who was her current hair stylist, Shaunta Cannon.
See Browne v. Saunders, 768 A.2d 467 (Table), 201 WL 138497, at *1 (Del. Feb. 14, 2011) ("As a general rule, we interpret pleading requirements liberally where the plaintiff appears pro se."). Because Plaintiff pursued only a negligence theory at trial, breach of contract and breach of warranty will not be addressed.
Ms. Cannon attempted to testify to the reason why Plaintiff's hair was damaged, however, Defendant objected that Ms. Cannon was not an expert and had not been qualified as an expert. After Plaintiff stipulated that her witness was testifying as a lay witness and not as an expert, Plaintiff continued questioning Ms. Cannon. Plaintiff hired Ms. Cannon approximately four months after her hair began falling out. Ms. Cannon had never seen, nor treated, Plaintiffs hair prior to the alleged incident at Defendant's location. Yet, Ms. Cannon accused Defendant for the damage to Plaintiff's hair.
Plaintiff produced—for identification purposes only—receipts of her hair treatment at the witness's salon, and her own, dead hair. Plaintiff introduced directly into evidence pictures of her 1980s spiral perm and of her hair during treatment at Cannon's salon. Plaintiff then called her sister, Cathy Croteau, Plaintiff's second and last witness. According to her sister, Plaintiff's hair was beautiful and voluminous prior to the alleged incident. No pictures of Plaintiff's hair were produced that supported this claim. Besides Cathy Croteau's allegations against Defendant, she noted how devastated her sister was that her hair was damaged.
At the conclusion of Plaintiff's case-in-chief, Defendant moved for a Directed Verdict based on Plaintiff neglecting to call an expert witness to testify about the damage to her hair. The Court requested supplemental briefing on whether an expert was needed for describing negligent hair treatment. On July 19, 2016, Defendant responded with a letter addressed to the Court that briefly discussed case law on the matter. Defendant stated that no authority existed in Delaware directly on point but noted cases in other jurisdictions which he believed were relevant. Plaintiff did not submit supplemental briefing, but requested that the Court allow her to identify Ms. Cannon as her expert witness in a July 26, 2016 letter.
Defendant cited a District of Columbia appeals court case that required expert testimony for "proper application of chemicals and hair product to the hair," and an Ohio appeals court case which did not find "'hairdressing'" to be an occupation beyond the intelligence of the average juror. Scott v. James, 731 A.2d 399, 400, 405-07 (D.C. 1999); see generally Soderquist v. Halle's, No. 42442, 1981 Ohio App. LEXIS 11590 (Ohio Ct. App. Feb. 26, 1981). Defendant also referenced a Delaware case where the Superior Court required expert testimony in a case involving a massage therapist whose client was injured by the therapist. See generally Collis v. Topper's Salon & Health Spa, Inc., 2013 WL 4716237 (Del. Super. Aug. 29, 2013).
On August 5, 2016, this Court issued a Memorandum Opinion and Order on Defendant's Motion for Directed Verdict Pursuant to C.C.P. Civ. R. 50(a)(1). The Court found that expert testimony was not required because the professional mistake was apparent to the layperson when he or she exercised common sense. Further, the subject matter did not extend beyond the average person's common knowledge. Hence, the standard of care would simply be an ordinary, reasonable standard of care. Particularly, the Court noted that the hair damage was so egregious as to make Defendant's alleged mistake easily discernable by the average person.
On September 20, 2016, trial continued with Defendant's case-in-chief. Defendant's first witness was Katherine Johnson, a hair dresser that worked at Defendant's location for over six years. Mrs. Johnson had been a hair dresser for eight years, attended Paul Mitchell School of Delaware for ten to twelve months, worked at another salon prior to working for Defendant, and spent nine months in education with a "salon educator" at Defendant's location before she was allowed to work as a hair stylist. This was not her first spiral perm procedure.
Plaintiff's hair style before receiving the perm was "previously compromised," which meant that Plaintiff had previously applied color products to her hair. Because of this, Johnson performed a "gentle perm," consulting a second hair stylist after selecting the correct hair products to apply to Plaintiff's hair. Johnson experienced no problems during the perm procedure and Plaintiff did not express any problems during the procedure. Plaintiff was told by Mrs. Johnson that even though Plaintiff's hair was very dry, Plaintiff could not wash her hair for forty-eight hours. Because Plaintiff off-handedly mentioned that her hair needed to be colored, Johnson emphasized to Plaintiff that no chemicals for coloring purposes were to be applied to her hair prior to one month's time. After Plaintiff was advised by the Court of what cross-examination involved, she did not have any questions for Mrs. Johnson.
Defendant then called its second and last witness, Carrie Rutt, who owned Defendant's location. She has thirty-six stylists working at Defendant's location, which sees around one hundred and fifty customers each day. Ms. Rutt has owned Defendant's location for nine years, and had been a hair stylist for twenty-six years at Defendant's location prior to buying the salon. Ms. Rutt was very familiar with the spiral perm procedure, having performed "many" over her years as a stylist. Ms. Rutt had hired Katherine Johnson and Ms. Rutt found no problems with Mrs. Johnson testimony as to the correct procedure for a spiral perm, although Ms. Rutt was not present when Plaintiff received her perm. Ms. Rutt never received a complaint or had a problem with Mrs. Johnson's service prior to Plaintiff's complaint.
Ultimately, Ms. Rutt handled Plaintiff's complaint after Ms. Rutt's front desk manager informed her of Plaintiff's call and complaint. After listening to Plaintiff's complaint over the phone, Ms. Rutt talked with Mrs. Johnson about the procedure Mrs. Johnson followed when styling Plaintiff's hair; Ms. Rutt agreed with the procedure followed. Plaintiff returned to the salon twice for follow-up appointments after complaining about Mrs. Johnson's service and was not charged for those appointments. Plaintiff did not have any cross-examination questions for Ms. Rutt. Defense rested.
On her rebuttal testimony, Plaintiff excitedly restated her position. Plaintiff disagreed with Mrs. Johnson that she had failed to dispute her hair treatment since she raised a concern about the "rods" Johnson used. However, this disputed was based on Plaintiff not receiving a perm since the 1980s, and Johnson assured Plaintiff the effects would be the same even though the instruments were modern. Plaintiff also disputed that she was evaluated by Johnson; however, the Court does not find this claim credible. Plaintiff seems to deny the evaluation happened because another employee informed Plaintiff that she should have been evaluated by a different employee, yet this employee did not testify and Plaintiff provided no other evidence of a failure in procedure. Finally, Plaintiff stated that she traveled to the salon seven times, after her initial perm, for appointments that each lasted a couple hours long; however, the Court finds it hard to believe that she traveled seven more times to a salon which Plaintiff claimed was far away, blamed for her damaged hair, and threatened with an explosion.
In closing, Plaintiff stated that she believed she had proven what mistakes Defendant had made in treating her hair. She noted that she was still treating her hair. She stated that Defendant was "negligent" and did not "treat [her] right." She stated that she had paid them one hundred dollars for services she did not receive and "it's just wrong."
Defendant noted the preponderance standard and stated that Plaintiff proffered no testimony on what Defendant had done wrong. Further, the testimony that the court had heard was from Mrs. Johnson and Ms. Rutt, both trained stylists, who found no mistakes in the procedures followed when styling Plaintiff's hair. Defendant reminded the Court that negligence cannot be inferred it must be proven by the Plaintiff. Defendant pointed out that Plaintiff's only witness to examine Plaintiff's hair, Ms. Cannon, did not inspect Plaintiff's hair until four months after the incident. This Court reserved its decision.
II. THE LAW
In civil claims, the plaintiff bears the burden to prove each and every element of his or her claims by a preponderance of the evidence. The side which establishes the greater weight of evidence in its favor has met the preponderance standard.
Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967).
Id.
A. Negligence Standard
The negligence standard is well established. In order to prevail on a claim for negligence, the proponent of the claim must establish by a preponderance of the evidence that the defendant owed the plaintiff a duty of care, defendant breached that duty of care, and defendant's breach of the duty of care was the proximate cause of the defendant's injury. The duty of care typically owed is "one's duty to act reasonably and protect against reasonably foreseeable events."
New Haverford P'Ship v. Stroot, 772 A.2d 792, 798 (Del. 2001).
Shepard v. Reinoehl, 830 A.2d 1235, 1238 (Del. Super. 2002).
When determining liability in negligence actions, Delaware courts "hold individuals responsible for reasonably foreseeable events," and apply "the traditional 'but for' definition of proximate cause." Proximate cause "is that direct cause without which an accident would not have occurred." It is well settled under Delaware law that there may be more than one proximate cause of a plaintiff's injury.
Hudson v. Old Guard Ins. Co., 3A.3d 246, 250 (Del. 2010) (citations omitted).
Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821, 829 (Del. 1995) (quoting Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965)).
See Saddler v. Nanticoke Mem'l Hosp., 2012 WL 6846550, at *4 (Del. Super. Dec. 24, 2012); Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821, 829 (Del. 1995); Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991); McKeon v. Goldstein, 164 A.2d 260, 262 (Del. 1960).
B. Res Ipsa Loquitur Doctrine
The doctrine of res ipsa loquitur, "the thing speaks for itself," is a rule of circumstantial evidence. Res ipsa loquitur only applies when the injury occurred in such a peculiar fashion that a reasonable person—using common sense—would presume defendant acted negligently toward plaintiff as the injury would not normally occur otherwise. Hence, negligence must be the "only inference possible from the admitted circumstances." Importantly, Delaware law considers res ipsa loquitur to be an inference and not a presumption; thus, the burden does not shift to defendant after plaintiff establishes the injury. This is because an inference allows the trier of fact to weigh the evidence in favor of negligence occurring under the res ipsa doctrine, but does not demand it. In other words, the only "burden" to introduce rebuttal evidence left on the defendant's shoulders after the doctrine is invoked is the normal fear of losing at trial. In a similar vein, when considering proximate cause, if the injury occurs after a gap of time from the defendant's alleged act, it would benefit plaintiff to show that there was no intervening act which could cause such an injury.
BLACK'S LAW DICTIONARY 1336 (8th ed. 2004).
Skipper v. Royal Crown Bottling Co., 192 A.2d 910, 912 (Del. 1963); see also D.R.E. 304.
Skipper, 192 A.2d at 912.
Ciociola v. Delaware Coca-Cola Bottling Co., 172 A.2d 252, 257 (Del. 1961).
Scott v. Diamon State Tel. Co., 239 A.2d 703, 705 (Del).
Id. (quoting Sweeney v. Erving, 228 U.S. 233, 240 (1913)).
Id.
Skipper, 192 A.2d at 912.
Delaware Rule of Evidence 304(b) sets out the elements of res ipsa loquitur:
(1) The accident must be such as, in the ordinary course of events, does not happen if those who have management and control use proper care; andSimilar to negligence, which cannot be assumed, under res ipsa the "accident itself must make out a prima facie case of negligence." Yet, res ipsa can be considered by the court at any stage of the proceedings. The Court is not bound to "any particular course of action." Therefore, the Court is free to find res ipsa loquitur "'on a case-by-case basis considering the nature of the contentions, the sufficiency of the parties' factual showing, and the doctrine's applicable standards.'" Nevertheless, because of the potential for abuse, Delaware courts must apply res ipsa loquitur with "cautious judgment."
(2) The facts are such as to warrant an inference of negligence of such force as to call for an explanation or rebuttal from the defendant; and
(3) The thing or instrumentality which caused the injury must have been under the management or control (not necessarily exclusive) of the defendant or his servants at the time the negligence likely occurred; and
(4) Where the injured person participated in the events leading up to the accident, the evidence must exclude his own conduct as a responsible cause.
Smith v. Daimlerchrysler Corp., 2002 WL 31814534, at *5 (Del. Super. Nov. 20, 2002); Handy v. Uniroyal, Inc., 327 F. Supp. 596, 602 (D. Del. 1971) (interpreting Delaware law).
Orsini v. K-Mart Corp., 1997 WL 528034, at *1, 4 (Del. Super. Feb. 25, 1997) (plaintiff raised the possible defense of res ipsa loquitur during oral argument).
Id. at *4.
Austin v. Happy Harry's Inc., 2006 WL 3844076, at *3, 4 (Del. Super. Nov. 27, 2006) (quoting Orsini v. K-Mart Corp, 1997 WL 528034, at *4 (Del. Super. Feb. 25, 1997)) (plaintiff raised res ipsa doctrine at hearing for defendant's motion for summary judgment).
Slack v. Premier-Pabst Corp., 5 A.2d 516, 516 (Del. Super. 1939).
III. OPINION & ORDER
While the Court has no reason to doubt Plaintiff's witness' version of events, the Court does not agree with the conclusions they have drawn from those events. Therefore, assuming arguendo that the Court finds the Plaintiff's witness' testimony credible, their testimony does not establish a negligence claim. The Court was more persuaded by Defendant's witnesses and their conclusions. The Court finds that Defendants did not follow improper procedure when treating Plaintiff's hair and, therefore, Plaintiff failed to prove by a preponderance of the evidence the predicate elements of her negligence claim.
The Delaware Supreme Court recently reiterated that pro se litigants are afforded "some leniency in presenting their cases." However, this leniency does not afford the pro se plaintiff the ability to skirt the rules of the court, or bring the trial court's "administration of justice" to a screeching halt. Thus, the pro se litigant is not afforded the indulgence to adversely "affect the substantive rights of the parties."
Damiani v. Gill, 116 A.3d 1243 (Table), at *1 (Del. July 14, 2015).
Id. (internal quotation marks omitted).
Maddox v. Isaacs, 2013 WL 2297030, at *2 (Del. Super. May 7, 2013).
The Court is cognizant of the deference Plaintiff is afforded as a pro se litigant, and is sympathetic to her circumstances, but Plaintiff has failed to meet her burden of proving the elements of negligence at trial. Plaintiff has not established how Defendant breached its reasonable duty of care to a hair salon patron, or whether the spiral perm was the proximate cause of the damage to Plaintiff's hair. She failed to assert exactly what Defendant did incorrectly when its employee performed a spiral perm on Plaintiff's hair. Furthermore, Plaintiff provided the Court with no testimony or evidence of how Defendant's employee breached her duty of care to Plaintiff.
The record establishes that Plaintiff's hair was damaged and fell out after visiting Defendant's location and undergoing a spiral perm procedure. However, other than Plaintiff believing that the rods Mrs. Johnson used in her hair were not right because they were not similar to the procedure followed by a hair stylist who gave Plaintiff a perm in the 1980s, Plaintiff did not contest any facet of the procedure Defendant followed. And in fact, Mrs. Johnson consulted with Plaintiff about her hair and discussed the best products for Plaintiff's hair condition with another stylist. Additionally, Ms. Rutt verified that Mrs. Johnson followed the appropriate procedure for a spiral perm. Moreover, Ms. Rutt and Mrs. Johnson have been hair stylists for eight years or more.
Conversely, Plaintiff's witnesses, Ms. Cannon and Cathy Croteau, simply agreed with Plaintiff that her hair was damaged and presumed that it was Defendant's fault. While the Court ruled that expert opinion testimony was not required, there was no layperson testimony as to what damaged Plaintiff hair or how Defendant damaged Plaintiff's hair. Plaintiff provided the Court with no evidence to satisfy the elements of negligence.
Even under the doctrine of res ipsa loquitor, Plaintiff failed to establish negligence. Delaware Rule of Evidence 304(b)(3) requires that the "thing or instrumentality which caused the injury must have been under the management or control . . . of the defendant or his servants at the time the negligence likely occurred." Plaintiff has not shown or explained what the "thing" is that caused her injury, let alone established that the "thing" was in the control of Defendant's employees when her hair was damaged.
D.R.E. 304(b)(3) (emphasis added).
Granted, the "thing" might extend to the performance of a service or products used during that service; however, Plaintiff has failed to meet other requirements under the doctrine of res ipsa.
Furthermore, Rule 304(b)(4) requires that when the "injured person participated in the events leading up to the accident, the evidence must exclude his own conduct as a responsible cause." In the instant case, regardless of whether "accident" is defined as Plaintiff receiving the perm at Defendant's location or the point in time when Plaintiff's hair began to fall out, Plaintiff has failed to show or explain how her own conduct did not contribute to her hair falling out. It is conceivable that Plaintiff might have washed or colored her hair in an attempt to rehydrate hair that looked like a "dolls hair that had been in an attic for 100 years," or contributed in some other way. When Plaintiff has failed to exclude her own conduct as a possible contributing factor, the Court cannot speculate that Defendant was the "but for" cause of the injury.
D.R.E. 304(b)(4) (emphasis added).
In examining similar case law, the Court finds itself in a precarious situation as the complained of injury—spiral permanent wave treatment—is too narrow an issue for Delaware case law. Nevertheless, cases from other jurisdictions have failed to provide Plaintiff with support for such a nebulous claim. This Court is hesitant to depart from the Delaware admonishment that res ipsa should be applied cautiously and, thus, declines to allow Plaintiff to rely on the doctrine in the present case.
See Tarbox v. Eason, 179 So. 2d 916, 917-18 (La. Ct. App. 1965) (plaintiff alleged her hair was damaged and fell out in patches because of the chemicals Defendant used in giving her a permanent wave, however, plaintiff could not use res ipsa to infer the act itself); Scott v. James, 731 A.2d 399, 400, 406 (D.C. 1999) ("The mere fact that [plaintiff] may have experienced dry hair that broke off after treatment is insufficient in and of itself to invoke the res ipsa loquitur doctrine."); Blish v. Greco, 41 N.Y.S. 2d 390, 390 (N.Y. Trial Term 1943) (New York Court declined to find negligence when testimony noted that plaintiff "frequently bleached" her hair, and there was a lack of evidence that defendant followed inappropriate procedure). It is important to note that this is not a case where the breach was clearly stated. E.g., McDougle v. Woodward & Lothrop, Inc., 312 F.2d 21, 22, 23 (4th Cir. 1963) (plaintiff was able to claim res ipsa loquitur against beauty salon for a permanent wave treatment because plaintiff testified to the solution running down her neck and irritation occurring, which resulted in dermatitis).
IV. CONCLUSION
For the foregoing reasons, the Court hereby enters judgment in favor of Defendant Town & Country Salon with respect to Plaintiff's negligence claim, as Plaintiff has failed to establish the elements of negligence. Each party shall bear their own costs.
IT IS SO ORDERED this 10th day of October, 2016.
/s/_________
John K. Welch, Judge cc: Ms. Tamu White, Chief Civil Clerk