Question 1

I.The Res Ipsa Loquitur Doctrine

Accepted Answer

Res ipsa loquitur means “the thing speaks for itself”.  It   provides injured plaintiff with common sense inference of negligence where direct proof of negligence is lacking, under certain limited circumstances. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*; Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978); McDougald v. Perry, 716 So.2d 783 (Fla. 1998); McClatchey v. HCA, 39 FLW D1236 (4th DCA 2014).
“Res ipsa is a type of circumstantial evidence from which a jury may reasonably infer negligence based on the mere occurrence of the event. It allows the plaintiff to rest his case on circumstantial evidence. As an evidentiary tool, res ipsa relieves a tort plaintiff, in limited circumstances, of the burden to prove the defendant&#8217;s negligence by direct evidence.” Wolpert v. Washington Square Office Center, 555 So.2d 382 (3rd DCA 1989).
Doctrine is not substitute for proof, but is rule of evidence which raises inference of negligence where defendant has control of instrument causing injury and accident is such that it would not occur in ordinary nature of things absent negligence of defendant. W.J. Kiely & Co. v. Dickey, 124 So.2d 731 (3rd DCA 1960).
Doctrine is a rule of evidence which permits, but does not compel, inference of negligence under certain circumstances. Marrero v. Goldsmith, 486 So.2d 530 (Fla. 1986).

Question 2

II. Applicability/Standard

Accepted Answer

To rely on res ipsa doctrine, plaintiff must establish that (1) instrumentality causing injury was under exclusive control of defendant, and (2) accident is not one which, in ordinary course of events, would have occurred without negligence by the one in control. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*; Burns v. Otis Elevator, 550 So.2d 21 (3rd DCA 1989); McDougald v. Perry, 716 So.2d 783 (Fla. 1998); McClatchey v. HCA, 139 So.3d 970(4th DCA 2014).
Threshold inquiry is whether event is one which does not ordinarily happen except in the absence of due care, and initial burden is on plaintiff to show that, in light of common experience, negligence was the likely cause and defendant was the likely actor. Doctrine is one of extremely limited applicability. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978).
Burden is on plaintiff to establish that injuries resulted from negligence and that defendant was likely cause. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*.
Plaintiff is not required to eliminate with certainty all other possible causes or inferences, but must only present evidence from which reasonable person can say that event was more likely caused by negligence than not. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*; McDougald v. Perry, 716 So.2d 783 (Fla. 1998); McClatchey v. HCA, 139 So.3d 970 (4th DCA 2014).
If conditions for res ipsa doctrine are established, actual or constructive notice to defendant of defect is irrelevant. Burns v. Otis Elevator, 550 So.2d 21 (Fla. 3rd DCA 1989).
Application of res ipsa requires: (1) instrument causing injury must be under exclusive control of defendant both as to operation and inspection, (2) injury must not be caused by action or negligence of plaintiff, and (3) event is such that it would ordinarily not occur had defendant used due care. Commercial Union Insurance Co. v. Street, 327 So.2d 113 (2nd DCA 1976); Holman v. Ford Motor Company, 239 So.2d 40 (1st DCA 1970); U.S. v. Nassau Marine Corp., 778 F.2d 1111 (5th Cir. 1985).
Res ipsa is applicable if “the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” §328D(1)(c) Restatement (2nd) of Torts (1965).
Res ipsa doctrine is not confined only to situations where there is one possible defendant whose negligence could have caused injury. Holman v. Ford Motor Company, 239 So.2d 40 (1st DCA 1970).
Res ipsa is applicable only in rare instances. McDougald v. Perry, 716 So.2d 783 (Fla. 1998).
Given restrictive nature of doctrine of res ipsa loquitur, court should never lightly provide this inference of negligence, but rather, it is incumbent upon plaintiff to present his or her case in manner which demonstrates and satisfies each of doctrine&#8217;s requisite elements and only after plaintiff carries his burden of proof may court supply inference. City of New Smyrna Beach Utilities Com’n. v. McWhorter, 418 So.2d 261 (Fla. 1982).
Res ipsa doctrine assists plaintiff by permitting jury to draw inference of negligence that has not otherwise been proved directly; it does not establish that defendant was negligent as matter of law and it does not limit defendant’s right to present evidence that it was not negligent. Empire Club, Inc. v. Hernandez, 974 So.2d 447 (2nd DCA 2007).
Res ipsa doctrine creates only rebuttable presumption of negligence; it is not sufficient by itself to support summary judgment. Sherry v. Regency Ins. Co., 884 So.2d  175 (2nd DCA 2004). “Where there exists a genuine issue of material fact, which if resolved in the plaintiff’s favor, could permit res ipsa loquitur to apply, summary judgment is premature.” McClatchey v. HCA, 139 So.3d 970 (4th DCA 2014).
Plaintiff may plead separate count for res ipsa loquitur negligence theory, in addition to standard negligence count. Rockey v. Royal Caribbean Cruises, Ltd., 2001 WL 420993 (S.D.Fla. 2001).

Question 3

III.Defendant’s Exclusive Control

Accepted Answer

Plaintiff’s mere proximity to instrumentality causing injury does not negate exclusivity of defendant’s control in absence of evidence that conduct of plaintiff or third party caused accident. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*; Cardina v. Kash N’ Karry, 663 So.2d 642 (2nd DCA 1995).
Plaintiff need not show defendant had exclusive control, but only that defendant’s control had sufficient exclusivity to eliminate possibility that occurrence was caused by actions of another. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*.
Existence of maintenance contract with a maintenance company does not relieve elevator owner of liability. Burns v. Otis Elevator, 550 So.2d 21 (3rd DCA 1989); Commercial Union Insurance Co. v. Street, 327 So.2d 113 (2nd DCA 1976).
Exception to requirement of exclusive control applies to company who rents vehicles to another to drive, if defect causing injury was not due to negligence of plaintiff and if condition of vehicle did not change after leaving defendant’s possession. Yarbrough v. Ball U-Drive System, Inc., 48 So.2d 82 (Fla., Special Div. B 1950).
Mere possibility that negligence of someone other than defendant caused event is not sufficient to defeat application of res ipsa doctrine; defendant must show that negligence of another more likely than not caused the event. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*.
Res ipsa doctrine is available to plaintiff when “other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence.” §328D(1)(b) Restatement (2nd) of Torts (1965).
Where no change in the instrumentality takes place that reasonably could have contributed to the injury, between the time that plaintiff takes possession from the defendant and the time of the event causing injury, res ipsa applies; this is exception to general rule requiring that defendant be in exclusive control at time of event. Williams v. Hollywood Chrysler Plymouth, Inc., 541 So.2d 1195 (3rd DCA 1988) (plaintiff was injured due to defects in car that he purchased from defendant); Bill Kelley Chevrolet, Inc. v. Kerr, 258 So.2d 280 (3rd DCA 1972); Holman v. Ford Motor Company, 239 So.2d 40 (1st DCA 1970) (plaintiff injured when brakes in his car failed, due to defective brake mechanism manufactured by defendant).
“[I]t is the exclusivity of the defendant’s control that permits an inference of negligence under the doctrine, not the identity of the instrumentality itself.” Plaintiff was in exclusive control of paramedics when he somehow suffered fracture while in ambulance, as evidence showed he had no fracture before being placed in ambulance but had fracture after being removed from ambulance. Soltwisch v. Pasco County, 33 So.3d 85 (2nd DCA 2010).

Question 4

IV. Direct Evidence of Negligence

Accepted Answer

Res ipsa is only applicable if direct evidence of negligence is wanting or unavailable. Monforti v. K-Mart, Inc., 690 So.2d 631 (5th DCA 1997).
Even if plaintiff presents some direct evidence of defendant’s negligence, plaintiff may still rely on doctrine of res ipsa.  If jury rejects evidence of negligence, it may still find defendant liable based on inference afforded by res ipsa doctrine. South Florida Hospital Corp. v. McCrea, 118 So.2d 25 (Fla. 1960).
If case is proper in other respects for application of res ipsa doctrine, presence of some direct evidence of negligence does not deprive plaintiff of the doctrine; however, there comes a point at which plaintiff is able to present sufficient evidence of negligence to eliminate the need for the inference. Marrero v. Goldsmith, 486 So.2d 530 (Fla. 1986).

Question 5

V. Res Ipsa Loquitur Applicable

Accepted Answer

Wall-mounted trash can fell  off wall in restroom. Nodurft v. Servico Centre Associates, Ltd., 884 So.2d 395 (4th DCA 2004)*.
Case of tomatoes fell from 5-foot high pallet, striking plaintiff in head. Cardina v. Kash N’ Karry, 663 So.2d 642 (2nd DCA 1995).
Mirrored wall panel with shelves fell on plaintiff in store. Bonventre v. Max, 229 A.D.2d 557 (1996).
Elevator dropped three floors unexpectedly then came to abrupt stop. Wolpert v. Washington Square Office Center, 555 So.2d 382 (3rd DCA 1989).
Res ipsa loquitur is particularly applicable in elevator cab cases. Ferguson v. Westinghouse Elec. Co., 408 So.2d 659 (3rd DCA 1981).
Elevator fell six floors and stopped abruptly. Storey v. Westinghouse Elec. Corp., 554 So.2d 619 (3rd DCA 1989).
Elevator was misleveled by 3-6 inches. Dickman v. Stewarts Tenants Corp., 221 A.D.2d 158 (N.Y.A.D. 1995).
Elevator came to abrupt stop while descending. Tait v. Armor Elevator Co., 958 F.2d 563 (3rd Cir. 1992).
Res ipsa is applicable in exploding bottle cases, if plaintiff can show that after bottle left possession of manufacturer or bottler, it was not subject to any unusual atmospheric changes or changes in temperature, and it was not handled improperly prior to explosion. Starke Coca-Cola Bottling Co. v. Carrington, 32 So.2d 583 (Fla. 1947).
In exploding bottle case, plaintiff need not do impossible by accounting for every moment of bottle’s existence after it left defendant’s possession; plaintiff must only show proper handling in general and absence of unusual incidents to permit reasonable conclusion that explosion resulted from defendant’s negligence. Steele v. Royal Crown Cola Bottling Co., 335 So.2d 586 (3rd DCA 1976) (bottle exploded in plaintiff’s hand when she picked it up in defendant’s grocery store).
.25-pound case of tomatoes fell from pallet in defendant’s stockroom, hitting plaintiff in head. Cardina v. Kash N’ Karry Food Stores, Inc., 663 So.2d 642 (2nd DCA 1995).
Plaintiff was injured while standing on sidewalk when sign fell off side of building and struck him. W.J. Kiely & Co. v. Dickey, 124 So.2d 731 (3rd DCA 1960).
Elevator door closed on plaintiff’s shoulder as he entered elevator, which was sufficient to raise presumption that malfunction occurred in elevator under res ipsa doctrine. Burns v. Otis Elevator, 550 So.2d 21 (3rd DCA 1989).
Plaintiff injured when elevator dropped abruptly. Commercial Union Insurance Co. v. Street, 327 So.2d 113 (2nd DCA 1976).
Defect in vehicle drive shaft caused vehicle to lose control and roll over. Yarbrough v. Ball U-Drive System, Inc., 48 So.2d 82 (Fla., Special Div. B 1950).
Car accelerated unexpectedly when accelerator spring broke. Bill Kelley Chevrolet, Inc. v. Kerr, 258 So.2d 280 (3rd DCA 1972).
Spare tire came loose from cradle underneath defendant’s tractor-trailer, causing tire to become airborne and strike plaintiff’s windshield. McDougald v. Perry, 716 So.2d 783 (Fla. 1998).
In medical malpractice case, plaintiff entitled to rely on res ipsa doctrine, when following surgery she had injury to arm, which was not operated on, defendants were in exclusive control of her body during surgery, and expert testified that injury is not something that would ordinarily occur during surgery in the absence of negligence. Marrero v. Goldsmith, 486 So.2d 530 (Fla. 1986).
Portion of hotel ceiling collapsed onto plaintiff. Kadushin v. Philmac Realty Corp., 128 So.2d 400 (3rd DCA 1961).
Tire exploded 6 months after installation and after being driven 4,000 miles; evidence indicated that blowout was caused by manufacturing defect that occurred while tire was in defendant’s control. Dayton Tire and Rubber Co. v. Davis, 348 So.2d 575 (1st DCA 1977), quashed and remanded by Goodyear v. Hughes Supply, 358 So.2d 1339 (Fla. 1978) (see section VI(1) below).
Summary judgment for defendant reversed in case in which plaintiff was injured when picture fell from wall in hospital room. Court held that genuine issue of fact existed as to whether elements of res ipsa loquitur were met. McClatchey v. HCA, 139 So.3d 970 (4th DCA 2014).

Question 6

VI.Res Ipsa Loquitur Not Applicable

Accepted Answer

Res ipsa is generally not applicable against tire manufacturer in tire blowout cases, where blowout occurs after possession and significant use by another; however, it may be applicable in some tire defect situations, such as when tire explodes while being mounted for the first time. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978).
Boxes of file folders fell off shelf in store, hitting plaintiff in head; res ipsa not applicable because shelf and boxes were easily accessible to store customers so as not to be in exclusive control of defendant, and direct evidence of negligence was not lacking, as plaintiff presented expert testimony that shelf was not adequate to support weight of merchandise. Monforti v. K-Mart, Inc., 690 So.2d 631 (5th DCA 1997).
Toy radio fell off hook from which it was hanging in store, hitting plaintiff in face; radios and hook were not under exclusive control of defendant, as they were accessible to customers. Wal-Mart Stores, Inc. v. Rogers, 714 So.2d 577 (1st DCA 1998).
Plaintiff was injured when jewelry display rack fell off counter after plaintiff touched and tried to turn the display. Harrell v. Beall’s Dept. Store, Inc., 614 So.2d 1142 (2nd DCA 1993).
Res ipsa not available to plaintiff who suffered damages as result of blockage in city sewer system; although city had exclusive control over construction and operation of system, it did not have exclusive control over what entered system, and it was object that entered system, and not defect in system itself, that caused blockage; plaintiff also failed to demonstrate that direct evidence of city’s negligence was unavailable, and that blockage is event that would not ordinarily happen in absence of negligence. City of New Smyrna Beach Utilities Com’n. v. McWhorter, 418 So.2d 261 (Fla. 1982).
Res ipsa instruction properly denied, where plaintiff was able to present substantial direct evidence in form of eyewitness testimony as to defendant’s negligence and how event causing injury happened; wood panels stacked by defendant in store fell over onto plaintiff. Ploetz v. Big Discount Panel Center, Inc., 402 So.2d 64 (4th DCA 1981).

Question 7

VII.Request for Jury Instruction

Accepted Answer

Each party is entitled to have jury instructed on his theory of case; when requested instruction is not given, party’s theory of the case is necessarily left partially unexpressed. Seguin v. Hauser Motor Company, 350 So.2d 1089 (4th DCA 1977).
Where party requests instruction which announces legal proposition applicable to facts of case, is consistent with party’s theory of case, and is not adequately covered by other instructions, requested instruction should not be denied. Snedegar v. Arnone, 532 So.2d 717 (4th DCA 1988).

*The author of this outline was counsel for the plaintiff in the Nodurft case.

Res Ipsa Loquitor in Florida

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