Korsak

Plaintiff and respondent Richard Korsak, M.D., was struck in the eye by a jet of water after a shower head fell off its pipe in the bathroom of a guest room Korsak and his wife occupied in a hotel owned and operated by defendant and appellant Atlas Hotels, Inc. (Hotel). Korsak sued Hotel for personal injuries, and a unanimous jury awarded him $450,900. Hotel appeals the judgment after the trial court denied its motion for new trial or for judgment notwithstanding the verdict. It claims the trial court committed prejudicial error in allowing Korsak’s expert to testify regarding hearsay statements of hotel maintenance procedures, and in denying Hotel’s motion for a new trial made on the same grounds.

*1519 We find the trial court abused its discretion by allowing the expert to testify to incompetent hearsay evidence of an informal survey the expert conducted about hotel maintenance practices. That evidence was the only testimony demonstrating Hotel had failed to meet the standard of care owed to its guests, since no witnesses on hotel maintenance, other than the unqualified expert and Hotel’s own employees, were called. The court compounded the error by giving a jury…

HUFFMAN, Acting P.J.

Plaintiff and respondent Richard Korsak, M.D., was struck in the eye by a jet of water after a shower head fell off its pipe in the bathroom of a guest room Korsak and his wife occupied in a hotel owned and operated by defendant and appellant Atlas Hotels, Inc. (Hotel). Korsak sued Hotel for personal injuries, and a unanimous jury awarded him $450,900. Hotel appeals the judgment after the trial court denied its motion for new trial or for judgment notwithstanding the verdict. It claims the trial court committed prejudicial error in allowing Korsak's expert to testify regarding hearsay statements of hotel maintenance procedures, and in denying Hotel's motion for a new trial made on the same grounds.

We find the trial court abused its discretion by allowing the expert to testify to incompetent hearsay evidence of an informal survey the expert conducted about hotel maintenance practices. That evidence was the only testimony demonstrating Hotel had failed to meet the standard of care owed to its guests, since no witnesses on hotel maintenance, other than the unqualified expert and Hotel's own employees, were called. The court compounded the error by…

I respectfully dissent. The majority, in determining an evidentiary issue requires reversal, has stood this case on its head. The only prejudicial error demonstrated by this record was suffered by respondent Korsak, and not appellant Atlas Hotels, Inc. (Hotel).

In this case, Hotel conveniently lost the admittedly defective shower head before it could be inspected by Korsak’s expert. The trial judge refused to allow evidence that another shower head had fallen off in the same building. Finally, when Korsak’s trial attorney offered jury instructions (BAJI Nos. 4.00 and 4.03) on res ipsa loquitur, they were refused. The trial judge responded to a request to argue the point as follows: “I’ve been on the bench over 17 years. I’ve given the res ipsa loquitur instructions twice. So, if you want to argue, go ahead. This is not a res ipsa case.” After argument the judge confirmed his determination to refuse res ipsa instructions on the ground the shower head was not under the exclusive control of Hotel, as Korsak had rented the hotel room for a week. Yet despite every one of these adverse rulings, the jury found Hotel negligent, and awarded damages to Korsak.

Where the result below is…