¶1dissenting. I respectfully dissent from the majority opinion. In my view the trial court clearly erred in finding appellant failed to prove by a preponderance of the evidence that appellee was negligent in the manner- in which he used the surgical knife.
¶2The undisputed proof shows the thin bladed knife No. 15 is suitable only for excising skin or soft tissue. Appellee admitted he used the knife to excise ligamentous covering and disc material down deep within the vertebral interspace, that the disc material is tough and looks like crab meat, that in the case of a person with a degenerative disc, as was the case here, the disc material can become more fibrous, and it was while appellee was excising such material that the knife blade broke off. The knife blade was left within Mrs. McClain’s body, and thereafter caused her great pain, was a hazard to her health and a second operation was required for the removal of the knife blade.
¶3There is undisputed expert testimony that the blade of the type of knife used by the appellee would only stand about one-half pound of lateral load applied to the handle. There was further expert testimony that the blade failed due to a lateral load applied to the handle.
¶4In my view the appellee knew or should have known that the disposable thin bladed knife No. 15 he used for excising the degenerative disc material was not suitable for such purpose, and that the use of the knife for such purpose might well result in the blade breaking, as in fact it did.
¶5I would reverse and remand the case for a determination of damages proximately caused by the actions of the appellee in causing the knife blade to break off and be left embedded in Mrs. McClain’s spinal column.