In Montalvo v. Mumpus Restorations, Inc., a building porter was hit in the head by a bucket of roofing adhesive that fell from the roof as he was leaving the building. He sued the contractor that had repaired the roof several weeks earlier. The contractor moved for summary judgment arguing that its employees did not leave a bucket on the roof. The plaintiff opposed the motion by arguing “res ipsa loquitur.” That is, ordinarily things do not fall from roofs unless someone was negligent. To establish a claim under res ipsa, however, a plaintiff must prove that the accident was “caused by an instrumentality within the exclusive control of the defendant.” The court held that there was an issue of fact as to whether access to the roof had been in exclusive control of the roofer (i.e., that no one else had been permitted up there since they left). Accordingly, the court denied the roofer’s motion for summary judgment and will let a jury decide if things just fall out of the sky (or off a roof) for no reason.

Thanks to Cheryl Fuchs for her contribution to this post.

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27589.pdf