Res ipsa loquitor is a rebuttable presumption or, an inference of negligence that relieves plaintiffs, to a certain extent of their burden of proof by direct evidence that a defendant caused her harm.  When res ipsa loquitor applies, a plaintiff need only demonstrate the injury suffered and the circumstances under which the accident occurred.

Res ipsa loquitor is warranted only when the following conditions are satisfied: (1) an incident of this nature would ordinarily not occur in the absence of negligence; (2) the instrumentality that caused the injury was within the defendant’s exclusive control; and (3) the incident was not due to any voluntary action or contribution by the plaintiff. 

The second and third limitations on res ipsa loquitor can generally be determined convincingly – the defendant must have exclusive control and the plaintiff must clearly be an innocent victim.  However the whether the circumstances under which the accident occurred, unexplained, justify a presumption or inference of negligence depends upon the specific set of facts of each case or upon the nature of each accident.  If the accident would not have occurred in the ordinary course of events, and the second and third prongs are established, then res ipsa loquitor will apply and a jury can infer the defendant’s negligence. 

The application of res ipsa loquitor, is often attempted in cases where a plaintiff’s proof is weak and, therefore, is an important issue to try to resolve by summary judgment motion before trial.  There is no standardized case or bright line rule regarding what accident or which circumstances justify the application of this powerful presumption. 

The Appellate Divisions of the First and Second Department recently decided appeals based upon the doctrine of res ipsa loquitor and provided different interpretations of the doctrine’s applicability.

The Second Department, in the case of Little v. Kone reversed a lower court’s denial of defendant’s motion for summary judgment.  The plaintiff alleged that she was injured while attempting to enter a freight elevator.  She sued the company retained to service and maintain the elevator after she was allegedly struck on the head by the elevator gate, after its alarm bell and strobe light failed to activate and warn her that the gate was about to close.  The Second Department, in analyzing the case, found that plaintiff failed to satisfy the first element of res ipsa loquitor, namely that the accident was “of a kind that ordinarily does not occur in the absence of someone’s negligence.”  The court determined that plaintiff failed to raise a triable issue of fact in response to the elevator company’s proof that it lacked notice of an ongoing condition that would have caused the elevator gate to close without warning.  In other words, the incident could have occurred even if no one was negligent.  Because the plaintiff failed to satisfy the first element, she could not rely on the doctrine of res ipsa loquitor and in fact, could not maintain the cause of action against the elevator maintenance company.

The First Department, in Sterbinsky v. 780 Riverside Dr., LLC, affirmed a lower court’s application of res ipsa loquitor and grant of partial summary judgment to a plaintiff who fell through an air shaft while walking over a metal grate that collapsed.  Plaintiff, a cable television technician fell as a result of the collapse of a grate due to the corroded condition of the metal frame supporting it. The court found that the doctrine applied and defendant failed to rebut the presumption due to the fact that eyewitness testimony confirmed the existence of rust on the edges of the grate.  In other words the court found that the grate would not ordinarily collapse in the absence of someone’s negligence.  The court even added that defendant’s claim of no notice was unavailing because notice is inferred when res ipsa loquitor applies.

Sometimes seen as a throw in claim, a plaintiff’s claim of res ipsa loquitorcan have powerful implications.  When a plaintiff can sustain the inference, a court can deem a party negligent that might not otherwise be.  If the defendant can defeat the application of the doctrine, it may lead to complete dismissal.  The cases above demonstrate that application of this doctrine has a strong influence on the ultimate outcome of the case.   When a plaintiff makes claims of res ipsa loquitor, the defense must pursue the facts that defeat the doctrine’s application early on and move to dismiss the res ipsa loquitorclaim when the facts support such a dismissal.

Thanks to Vincent Terassi for his contribution.

For more information, contact Denise Fontana Ricci at .