QUESTION:
I went to a hair salon to have my hair pressed and the salon artist burned out a large chunk of my hair in the back of my head. I called to talk to her about it, but all she does is apologize. Then she tells me that she can only offer me $50 a month. She also tells me sob story wherein she knows that it could happen because she recently had a stroke a few months ago and sometimes it’s hard to control her right hand. Can I sue her?
ANSWER:
Ordinarily, tort liability cannot be established unless plaintiffs can prove their injuries resulted from the tortious acts of a particular defendant or defendants. As a general rule, the burden of proof as to negligence (duty and breach) and causation rests upon plaintiff; and plaintiff does not meet this burden simply by demonstrating that one of several defendants could have been responsible. [See Sindell v. Abbott Laboratories (1980) 26 C3d 588, 597, 163 CR 132, 136].Moreover, the “strict product liability” theory of recovery exposes a broad range of defendants to legal accountability for “defective” products. Liability attaches upon proof of the product “defect” and a sufficient causalconnection between defendant, the product and plaintiff’s injury. However, the strict liability doctrine does not apply where the primary objective of the transaction is to provide a service rather than a “product.” This limitation recognizes that “perfection” cannot be expected from human performance: Whereas a defect in a product is ultimately objectively measurable, “a service is no more than direct human action or human performance. Whether that performance is defective is judged by what is reasonable under the circumstances and depends upon the actor’s skill, judgment, training, knowledge and experience … In light of the infinite subtle nuances of human performance, the law reasonably imposes only a standard of negligence rather than strict liability in the provision of human services [Pierson v. Sharp Memorial Hosp., Inc. (1989) 216 CA3d 340, 345, 264 CR 673, 676].
Furthermore, plaintiffs who can show actual bodily harm or injury from exposure to toxins are entitled to recover emotional distress damages as part of their pain and suffering. Such bodily injury may consist of a detrimental change in the physical condition of the body. [Duarte v. Zachariah (1994) 22 CA4th 1652, 1660–1663, 28 CR2d88, 93–94 & fn. 6]. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.
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