Converted WP file 061590-1

Appeal by plaintiff from judgment entered 28 June 2006 by Judge James L. Baker, Jr., in Haywood County Superior Court. Heard in the Court of Appeals 6 June 2007.

Melrose, Seago & Lay, P.A., by Randal Seago for plaintiff- appellant.

Van Winkle Law Firm, by Philip J. Smith and Dale A. Curriden for defendants-appellees.

    SMITH, Judge.

    Christine Snipes (plaintiff) appeals from an order granting summary judgment in favor of defendants. We affirm.
    On 6 January 2004, plaintiff went to defendant chiropractor's (Dr. Edwin Warren) office complaining of pain in her left sacroiliac joint, which is located in the lower left quadrant of the back along the waistline. Defendant performed various standard chiropractic tests and created a treatment plan for plaintiff. Plaintiff subsequently returned to defendant for treatment on the following days: 8 January, 12 January, 22 January, 26 January, 29 January and 4 February, all in 2004.     Plaintiff complained of pain in her right sacroiliac joint on 22 January 2004. At her 29 January 2004 visit, plaintiff's left-sided pain had subsided and no treatment was performed on that side. The final visit by plaintiff to defendant occurred on 4 February 2004 during which defendant administered treatment by the chiropractic manipulation of defendant. A few days following the last appointment with defendant, plaintiff sought treatment at the Haywood Regional Medical Center Emergency Room complaining of pain in her left groin. The Emergency Department Report indicates that plaintiff stated the pain in her groin had begun a few days following her final visit to defendant while she was walking in a mall. X-rays, which were subsequently taken, indicated a minor fracture of the superior and inferior pubic rami or pubic bone.
    In a complaint filed 30 July 2004, plaintiff alleged, inter alia, negligence based solely upon a theory of res ipsa loquitur in that defendants' final treatment of plaintiff was the cause of the fracture of her pelvic bone. In an answer filed 28 September 2004, defendants denied plaintiff's allegation and on 2 May 2006 defendants filed a motion for summary judgment arguing, in pertinent part, that:
        there exists no genuine issue of material fact . . . and Defendants are entitled to judgment as a matter of law; specifically, Plaintiff fails to forecast admissible evidence that the medical care at issue was a proximate cause of the alleged injury.

In an order filed 28 June 2006, the trial court granted defendants' motion for summary judgement pursuant to N.C. Gen. Stat. § 1A-1 Rule 56(c) (2005). Plaintiff filed timely notice of appeal.     On appeal, plaintiff contends the trial court erred in granting summary judgment in favor of defendant because the doctrine of res ipsa loquitor applies in the instant case. We disagree.
    Under G.S. § 1A-1, Rule 56(c), summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Thus, “the standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted).
    Res ipsa loquitur applies in “'situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of [a] defendant.'” Howie v. Walsh, 168 N.C. App. 694, 698, 609 S.E.2d 249, 251 (2005) (quoting Bowlin v. Duke University, 108 N.C. App. 145, 149, 423 S.E.2d 320, 322 (1992)); see also Anderson v. Assimos, 356 N.C. 415, 471, 572 S.E.2d 101, 103 (2002)(“Res ipsa loquitur claims are normally based on facts that permit an inference of defendant's negligence.”).
Accordingly, the doctrine is utilized “'when no proof of the cause of an injury is available, the instrument involved in theinjury is in the exclusive control of [a] defendant, and the injury is of a type that would not normally occur in the absence of negligence.'” Howie, 168 N.C. App. at 698, 609 S.E.2d at 251 (quoting Bowlin, 108 N.C. App. at 149, 423 S.E.2d at 322).
    For a res ipsa loquitur claim to succeed, however, a plaintiff must, “'without the assistance of expert testimony,'” be able to show that a defendant's negligent act caused a plaintiff's injury and that the injury could not have occurred without negligence by the defendant. Id. at 698, 609 S.E.2d at 252 (quoting Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000)). A res ipsa loquitur claim also requires that the average juror be able to infer negligence from the mere occurrence of the accident itself based on the juror's common knowledge or experience. Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362.
    Importantly, this Court has determined that res ipsa loquitur should be applied “somewhat restrictive[ly]” in medical malpractice cases, since “'the average juror [is] unfit to determine whether [a] plaintiff's injury would rarely occur in the absence of negligence[.]'” Howie, 168 N.C. App. at 698, 609 S.E.2d at 251 (citation omitted). The Court has therefore acknowledged that the average juror cannot make such an assessment because “(1) most medical treatment involves inherent risks despite adherence to the appropriate standard of care and (2) [because of] 'the scientific and technical nature of medical treatment[.]'” Id. at 698, 609 S.E.2d at 251 (quoting Schaffner, 77 N.C. App. at 692, 336 S.E.2d at 118).    In the instant case, plaintiff relies on res ipsa loquitur to support the claim that her fractured pelvic bone was caused by the negligent act of defendants during plaintiff's last chiropractic treatment with Dr. Warren. However, the average juror could not, based on that juror's common knowledge or experience, be able to infer that the type or amount of force used by defendant, Dr. Warren, during his manipulation of plaintiff was in any way excessive or improper. Plaintiff has not offered any evidence which would tend to support the conclusion that the fracture which plaintiff suffered, is the type which ordinarily occurs as the result of some negligent act or omission. In short, expert testimony would be necessary for the average juror to determine whether negligence occurred. Consequently, as plaintiff's claim for negligence was based solely on res ipsa loquitur, the trial court did not err by granting defendants' motion for summary judgment.
    Affirmed.
    Judges MCGEE and STEPHENS concur.
    Report per Rule 30(e).

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