Marie Duvivier v. Kay’s Oasis Enterprises, Inc., March 9, 2010
2010 Mass. App. Div. 31
Personal Injuries, Negligence, Hair-Weaving Treatment
The defendant, Kay's Oasis Enterprises, Inc. (“Kay's”), operated a hair salon that had treated the plaintiff, Duvivier. Kay's appealed a jury verdict of $500,000.00 against it on a personal injury claim arising out of a hair-weaving treatment it performed on Duvivier. Kay's principal argument on appeal was that a directed verdict should have been allowed on the issue of causation of Duvivier's injury by Kay's treatment. The Appellate Division affirmed the judgment for Duvivier
Facts
Duvivier went to Kay's Hair Salon on October 20, 2004 to have a “sewn weave” performed on her hair in preparation for a business trip to Florida. The appointment was made with a stylist experienced with performing sewn weaves. While at the hair salon, “Nicky” was assigned to Duvivier in place of the experienced stylist. Nicky was inexperienced, performed a quick weave instead of a sewn weave, and inappropriately applied glue directly on to Duvivier's head. Kay's conceded that Nicky should not have applied glue in the manner she did. A cap should have first been placed over Duvivier's head at the outset of treatment. Duvivier's expert witness testified that if the glue reaches the scalp (which it did in this case), the hair and the glue will come off together.
While in Florida, Duvivier experienced painful burning in her scalp. A hairdresser in Florida could not help and told her to go back to where she had been treated to get the glue removed. The Florida hairdresser may, or may not, have attempted to remove the glued stocking from Duvivier's head. Duvivier abandoned the trip due to the pain and returned to Kay's, but the staff could do nothing. On November 30, 2004, Duvivier went to Mattapan Community Health Center (“MCHC”) and a nurse practitioner gave her pain medication. On December 4, 2004, Duvivier's head was shaved so that pieces of stocking glued to her head could be removed. The pain in Duvivier's scalp stopped after the glue and stocking were removed. Duvivier's hair has never grown back to its preweave condition and Duvivier has spent $3,000.00 on wigs.
Injury Causation
Kay's principal argument on appeal was that the evidence was insufficient to permit a verdict that Duvivier's injuries, particularly the continuing baldness, were caused by the negligent treatment given her at Kay's. Kay's cited Duvivier's previously thin hair, health condition, and vague statements regarding her treatment by the Florida hairdresser.
“Where a person meets with an occurrence such as the one here and suffers injury such as that observed here, it is not speculative to infer that the injury was caused by the accident.” 2010 Mas. App. Div. 33. Additionally, possible concurrent contributing causes are irrelevant so long as the jury finds that the defendant's conduct was a substantial factor in causing the plaintiff's injuries. Kay's motions on the issue of causation were properly denied.
Personal Injury Damages
Kay's argues that the jury instructions effectively required the jury to find a permanent injury and the evidence did not include a medical opinion on that subject. The Appellate Division stated that use of the term “permanent condition” in the jury instructions simply set a standard for assessing damages. Additionally, “permanent injury” is defined as a “completed wrong whose consequences cannot be remedied for an indefinite period.” Black's Law Dictionary 857 (9th ed. 2009). This description fit Duvivier's condition. The jury instruction was proper.
Kay’s theory on appeal: Florida hairdresser was a potential joint tortfeasor
Kay's argued that the case should have been removed to Federal court based on diversity of citizenship, and that the Florida hairdresser was a necessary party under Mass. R. Civ. P., Rule 19(a).
Responsibility for removal rested with Kay's attorney, not with the trial court. Additionally, a joint tortfeasor is never a necessary party under Rule 19(a). Mongeau v. Boutelle, 10 Mass. App. Ct. 246, 253-254 (1980).
Admission of MCHC records
Kay's objected to the admission of MCHC records. The objection relied on G.L.c. 233, §79G references to “hospital medical records” and “physician.” The records in this cases were completed by a licensed nurse practitioner at a clinic. The Appellate Division stated that the SJC has given great leeway in defining medical providers under §79G. The clinic records were properly admitted under §79G.
Admission of photographs of Duvivier’s hair
Photographs were admitted of Duvivier‟s hair that were taken in 2000 and 2001. The injury occurred in 2004. Photographs were also taken after treatment at MCHC. Kay's argued against the relevance of the preinjury photographs because of the three-year gap before the injury. The Appellate Division affirmed the admission of the preinjury photographs, because Kay's was free to try to impeach Duvivier's testimony that the photos were a fair representation of her hair as it appeared in 2004 before she went to Kay's.
Kay's objected to the postinjury photographs as being prejudicially inflammatory. Possibly inflammatory photos require a weighing of its probative value and admission of the postinjury photos is at the discretion of the trial judge. The Appellate Division deferred to that decision.
Judgment affirmed.
- Prepared by AYK
