Thomas

The underlying action was for personal injuries arising from both medical malpractice and general negligence. By special verdict a jury found both the orthopedic surgeon and prosthetic supplier negligent and assessed liability at 50 percent each for the plaintiffs’ injuries.

The prosthetic supplier appeals from the judgment, claiming the trial court prejudicially erred in withdrawing the “captain of the ship” instruction in response to a jury question. We conclude the supplier’s special instruction was erroneous under the law and facts of this case. Therefore, we hold the trial court did not err in withdrawing the instruction from the jury’s consideration during deliberations.

Facts and Proceedings Below

In 1984 respondent G. Russell Thomas had a total hip replacement. Defendant Dr. John Thompson performed the surgery. Thomas continued to lead a very active life. Among other activities, he sailed his own boat to the South Pacific. He and his wife, respondent Marjorie Elizabeth Thomas took an extensive European vacation during which he walked several miles every day.

In November 1991, Thomas lost his balance while cleaning his Jacuzzi. He leapt to the other side of the…