Before Schwelb and Reid, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Associate Judge Reid
Appeal from the Superior Court of the District of Columbia (Hon. Evelyn E. Queen, Trial Judge)
Dissenting opinion by Associate Judge Schwelb
Reid, Associate Judge: Appellant Doris Scott filed a complaint alleging negligence by appellees Sylvia Summer, *fn1 a hair stylist, and Edna James, the alleged owner and operator of Edna's Beauty Salon in the District of Columbia. The alleged negligence concerned the application of a hair relaxer to Ms. Scott's hair. After the presentation of Ms. Scott's case, the trial court directed a verdict in favor of appellees on the ground that Ms. Scott failed to present expert testimony to show the standard of care in applying the hair relaxer. *fn2 Subsequently, Ms. Scott filed a motion for a new trial, arguing that expert testimony was not necessary because the trial court should have applied the doctrine of res ipsa loquitur to find negligence. The trial court denied the motion for a new trial. We affirm and hold that because the hair relaxer used on Ms. Scott contained chemicals and an understanding as to the proper application of a chemical product to the hair is not within the common knowledge of jurors, the trial court did not err in requiring Ms. Scott to present expert testimony regarding the standard of care for application of the relaxer. Furthermore, we conclude that the trial court did not abuse its discretion in refusing to grant Ms. Scott's motion for a new trial.
In her complaint Ms. Scott alleged that "[Ms.] Summer negligently applied and/or performed a hair relaxing treatment" on her which caused her hair to become dry and brittle and fall out. She sought $100,000 for mental anguish and "medical and out of pocket expenses for condition treatments and other procedures in an attempt to restore her hair to its pre-treatment state, and to improve the appearance of the damaged hair."
At trial Ms. Scott testified that on May 22, 1992, she went to Edna's Beauty Salon and asked for a hair relaxer. At the time she had a "geri curl" and "had just been putting activator in [her] hair." *fn3 Ms. Summer "examined [Ms. Scott's] hair," informed her it would take a relaxer and "began to proceed with putting the chemical in." Neither the product name nor the chemical content of the hair relaxer used was identified. Ms. Scott said her scalp "started to burn" and asked Ms. Summer to remove the chemical. Ms. Summer told Ms. Scott that "it will be okay" and continued to apply the relaxer. After completing the application, Ms. Summer rinsed out Ms. Scott's hair.
Ms. Scott asserted that the relaxer was not in her hair "a really long time" and after it was rinsed out "[i]t stopped burning as much." However, she continued to "feel some burning sensation" especially when Ms. Summer "started to blow dry" her hair. Ms. Summer "started cutting" Ms. Scott's hair and explained that she had "some damage portion . . . and I need to cut that away." Ms. Summer cut approximately "three or four inches all the way around." She then curled Ms. Summer's hair.
About three or four hours later, when Ms. Scott returned home, her hair started "to dry out and get brittle and it started to shed." Ms. Scott said she had never experienced a problem with dryness. After a couple of weeks, Ms. Scott's hair began to come out in clumps. She went to see another hair stylist, Diane Broadus. Ms. Broadus was not called as a witness and Ms. Scott was not allowed to recount her conversation with Ms. Broadus.
Ms. Scott returned to Edna's Hair Salon around the end of June and "showed them the damage to her hair." At that point, Ms. James agreed "to try to repair" Ms. Scott's hair. Ms. James washed and conditioned Ms. Scott's hair without charge and told her to return in a week. After six to eight weeks, Ms. Scott discontinued the free treatments because she did not see any improvement in her hair.
In an effort to improve her appearance and the condition of her hair, Ms. Scott testified that she purchased and wore wigs, tracks, *fn4 hair weave, *fn5 and braids. After trying the above "appliances" for approximately six months each, Ms. Scott had her hair cut really short in 1994 and her hair started to "grow back healthy."
On cross-examination Ms. Scott acknowledged that she did not visit a doctor until 1994, two years and two months after the incident. The doctor whom she saw, Dr. Eileen Blum, prescribed medication for dry skin which Ms. Scott used on her hands. Ms. Scott stated that she had suffered from dry skin "most of [her] life."
Nicole Fletcher, who was living with Ms. Scott on May 22, 1992, and saw her every day, testified that when Ms. Scott returned from the beauty salon her head looked a "mess" and Ms. Scott appeared unhappy. Ms. Fletcher said that Ms. Scott had long hair when she went to the salon but short hair on her return; and confirmed that Ms. Scott tried various appliances in an effort to get her hair to grow back.
Ms. Scott presented no other witnesses. At the close of her case, defense counsel moved for a directed verdict on the grounds that Ms. Scott had failed to establish the applicable standard of care, a deviation from that standard, and a causal link between the deviation and Ms. Scott's injury. The trial court granted the directed verdict on behalf of Ms. James and Ms. Summer. First, the trial court concluded that Ms. Scott had failed to establish her claim that Ms. Summer "negligently applied and performed a hair relaxing treatment" because she had not provided the standard of care, which required testimony of a licensed cosmetologist since the proper use of a relaxer is not within the knowledge of the average lay juror, evidenced by the fact that cosmetologists and hairdressers have to be licensed in the District to render such services. The court further stated:
"We have before us a case where we do not know the product used. We must speculate as to the nature of the product itself. We must speculate as to how one properly uses it. In order to determine that it was improperly used, we must know how [it's] properly used. I would use the analogy that there is not negligence everytime someone dies on the operating table. Sometimes it just happens."
Second, the trial court concluded that Ms. James "must be released from this matter" since Ms. Scott failed to present evidence to (1) show what steps Ms. James should have taken to repair her hair eight weeks after the damage, and (2) support a finding of negligence based on a respondeat superior relationship between Ms. James and Ms. Summer. Third, the trial court found no basis to Ms. Scott's claim for pain and suffering due to the hair relaxer application. In short, the trial court concluded that Ms. Scott had failed to prove a prima facie case for any of the claims asserted in her complaint.
Ms. Scott filed a motion for a new trial pursuant to Super. Ct. Civ. R. 59 and 60, asserting that the trial court erred in granting appellees' motion for a directed verdict on the ground that she failed to establish, through expert testimony, the standard of care for administration of a hair relaxer. Although she neither pled the doctrine of res ipsa loquitur nor raised it during pre-trial proceedings and did not invoke the doctrine in any explicit way during trial, Ms. Scott argued that res ipsa loquitur should have been applied and that the jury reasonably could conclude that she "was injured by the negligent application of the hair chemical by defendant Summer and that such injuries do not happen absent negligence." The trial court denied the motion and stated that it could not "consider the matter as res ipsa since other factors or conditions may have caused damage to [Ms. Scott's] hair and scalp including her own conduct, or disease." Ms. Scott filed a timely appeal.
Ms. Scott contends on appeal that the trial court erred in directing a verdict in favor of appellees since expert testimony of a standard of care was not necessary in order for her to make a prima facie case of negligence because "the facts of this case are such that a person of ordinary intelligence and experience could easily find that [appellees] ...