
    Grace Richardson, Plaintiff, v. Richard Parker et al., Defendants.
    Supreme Court, Special Term, Schenectady County,
    January 31, 1963.
    
      Jeremiah Hinden for plaintiff. Brown é Gallagher (Thomas A. Ford of counsel), for defendants.
   Archibald C. Wemple, J.

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’ contention of unavoidable accident. It was the duty of the defendants to use reasonable care in the medical treatment of the plaintiff. She was a patient undergoing treatment in his office and, as such, she was under his direction and control. The breaching of this duty is evidenced by the fact that the bottle of acid was left in such a place that it could fall upon the plaintiff. Certainly she did nothing to contribute to the accident. The equipment used was mobile and being of that type, it was certainly foreseeable by these defendants that the bottle of acid would, if struck and spilled, then become a dangerous instrumentality. The mere placement of the bottle of carbolic acid in proximity to the plaintiff without due precautions was an act sufficient to constitute negligence herein. In sum, negligence is the failure to use that due care which the circumstances require. It follows that the act was the proximate cause of the injury to the plaintiff.

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.  