It’s Not Delivery, It’s … Defense Verdict? (NY)

Yes, this lawsuit does involve pizza delivery, wherein Domino’s Pizza is a defendant.  No, the suit does not concern a pizza delivered after the 30 minute deadline.  But we suspect someone will take that issue to the Court eventually….

In Ramona Barril v. McClure, plaintiff brought suit for personal injuries after several Domino’s Pizza trays somehow fell on her while she was walking down a street in New Rochelle.  After a trial on liability, where the plaintiff relied on the doctrine of res ipsa loquitur, the jury found that the defendants were not at fault for her accident. The Appellate Division, Second Department evaluated whether the trial court properly granted judgment in favor of the defendants, upon (1) a jury verdict and (2) an order denying the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict, or in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial.

The Appellate Division dismissed the plaintiff’s appeal of the order, reasoning that the right of direct appeal terminated with the entry of judgment in the action.  The issues raised on the appeal from the order were considered on the appeal from the judgment per CPLR 55051(a)(1).

The res ipsa loquitur doctrine shifts the burden of proof to the defendant, wherein the defendant is presumed liable and must disprove negligence if the plaintiff establishes: (1) the event is of a kind which ordinarily does not occur without someone’s negligence; (2) the event is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event was not due to any voluntary actions or contributions by the plaintiff.

The Court affirmed the judgment, finding that the plaintiff failed to establish that there was no valid line of reasoning and permissible inference by which the jury could have concluded that the defendants were not at fault in the happening of the accident.  The Court reasoned that the plaintiff’s reliance on the doctrine of res ipsa loquitur was misdirected, as the evidence presented at trial failed to establish that the instrumentality of the accident was pizza dough trays within the exclusive control of the defendants.  Moreover, the Court reasoned that the plaintiff did not produce such weighty evidence that a verdict in favor of the defendant could not have been reached upon any fair interpretation of the evidence.  Thus, the Court concluded, the verdict was not contrary to the evidence.

In reaching its decision, the Appellate Division opined that only in the rarest cases will a plaintiff be awarded summary judgment, or judgment as a matter of law in the course of a trial, by relying upon the doctrine of res ipsa loquitur (citing Morejon v. Rais Constr. Co., 7 NY3d at 209).  While the doctrine can be used in certain cases to allow a jury to consider circumstantial evidence and infer that a defendant was negligent in some unspecified way, a jury is not required to make that inference.  Res ipsa loquitur evidence does not automatically entitle a plaintiff to judgment as a matter of law even if a plaintiff’s circumstantial evidence is unrefuted.  A plaintiff is only entitled to a directed verdict in such cases when his or her “circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable” (id).

Thanks to Afrodite Fountas for her contribution to this post.  Please email Brian Gibbons with any questions.

Res Ipsa Loquitur Can Apply Where Defendant Did Not Have Exclusive Access (NY)

In New York, a res ipsa loquitur charge is warranted only where a plaintiff establishes that: (1) the type of accident at issue ordinarily does not occur in the absence of negligence; (2) the instrumentality causing the accident was in the defendant’s exclusive control; and (3) the accident was not due to any voluntary action or contribution by the plaintiff.

Although it is difficult to prove “exclusive control”, this element has been liberally construed by the courts. In fact, the doctrine may still apply even where other parties have access to the instrument.

In Hutchings v Yuter, the plaintiff was injured when a garage door suddenly fell and struck him on the head. The defendant owned the property and maintained a home office in the basement. The First Department found that the doctrine of res ipsa loquitur applied because it was the type of event that does not normally occur in the absence of negligence. Although the defendants claimed others could have had access to the garage door, the Appellate Division found that the plaintiff demonstrated “sufficient” exclusivity of control.

Accordingly, res ipsa loquitur does not require sole physical access to the instrumentality causing the injury. The doctrine can be applied in situations where more than one defendant could have exercised exclusive control of an instrument. The courts have yet to set forth a clear standard defining “exclusive control.” As Hutchings demonstrates, “exclusivity” maybe inferred simply from a party’s ownership of the instrument.

Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul Clark at