New York Law Review

Tag: res ipsa loquitur

  • James v. Wormuth, 24 N.Y.3d 530 (2014): Applicability of Res Ipsa Loquitur When a Doctor Intentionally Leaves a Foreign Object

    James v. Wormuth, 24 N.Y.3d 530 (2014)

    Res ipsa loquitur is inapplicable in a medical malpractice case where a doctor intentionally leaves a foreign object inside a patient, requiring the plaintiff to demonstrate a deviation from accepted medical standards through expert testimony.

    Summary

    Marguerite James sued Dr. David Wormuth for medical malpractice after he intentionally left a localization guide wire in her lung during a biopsy. After an initial unsuccessful search, the doctor determined it was safer to leave the wire than prolong the surgery. James later experienced pain and underwent a second surgery to remove the wire. At trial, James argued res ipsa loquitur applied, negating the need for expert testimony. The trial court granted a directed verdict for the defendant, which the Appellate Division affirmed. The New York Court of Appeals affirmed, holding that because the doctor’s action was intentional, the plaintiff needed to prove the doctor’s decision deviated from accepted medical practice, which required expert testimony that she did not provide. Res ipsa loquitur applies only when the object is unintentionally left.

    Facts

    In October 2004, during a lung biopsy performed by Dr. Wormuth, a guide wire dislodged. The doctor performed a 20-minute manual search, but could not locate the wire. Dr. Wormuth decided it was better to leave the wire to avoid extending the surgery time. He informed James post-surgery that he had left the wire. James returned complaining of pain that she attributed to the wire. About two months later, Dr. Wormuth performed a second operation using a C-arm X-ray machine and successfully removed the wire.

    Procedural History

    James filed a medical malpractice suit. At the close of the plaintiff’s case, the defendant moved for a directed verdict. The trial court granted the motion. The Appellate Division affirmed. James appealed to the New York Court of Appeals.

    Issue(s)

    Whether res ipsa loquitur applies when a doctor intentionally leaves a foreign object inside a patient’s body during surgery, thereby relieving the plaintiff of the burden to provide expert testimony demonstrating a deviation from the accepted standard of medical care.

    Holding

    No, because res ipsa loquitur is only applicable when a foreign object is unintentionally left in a patient; here, the doctor made an intentional decision, requiring the plaintiff to demonstrate that the decision deviated from accepted medical standards through expert testimony.

    Court’s Reasoning

    The Court of Appeals stated that normally, a medical malpractice claim requires proof that the doctor deviated from acceptable medical practice and that the deviation proximately caused the injury. The Court explained that res ipsa loquitur applies when the specific cause of an accident is unknown. To invoke res ipsa loquitur, a plaintiff must show that the event does not ordinarily occur without negligence, that the instrumentality was in the defendant’s exclusive control, and that the plaintiff did not contribute to the event. In foreign object cases, res ipsa loquitur applies only when the object is “unintentionally left in a patient following an operative procedure.” Here, the plaintiff’s case was based on the doctor’s intentional choice to leave the wire, as confirmed by her counsel. Because the doctor intentionally left the wire, the plaintiff was required to establish that the doctor’s judgment deviated from accepted community standards of practice, and that such deviation was a proximate cause of the plaintiffs injury. Dr. Wormuth claimed his decision was based on his professional judgment, testifying that it was riskier to continue the search. The Court stated that determining whether the doctor’s professional judgment was appropriate requires expert testimony. Since the plaintiff did not provide expert testimony, her complaint was properly dismissed. The court also found that plaintiff failed to establish exclusive control, as other medical personnel were involved in the process. The Court distinguished this case from those involving objects left unintentionally, where there is no decision to leave the object that must be measured against a standard of care. The Court concluded that the plaintiff failed to demonstrate a prima facie case of medical malpractice based on res ipsa loquitur or traditional negligence principles, noting, “As advantageous as the res ipsa loquitur inference is for a plaintiff unable to adduce direct evidence of negligence, application of the [evidentiary] doctrine does not relieve a plaintiff of the burden of proof.”

  • Morejon v. Rais Construction Co., 18 A.D.3d 632 (2005): Res Ipsa Loquitur & Summary Judgment

    Morejon v. Rais Construction Co., 18 A.D.3d 632 (2005)

    While summary judgment for the plaintiff is theoretically possible in a res ipsa loquitur case, it is exceedingly rare and requires the plaintiff’s circumstantial evidence to be overwhelmingly convincing and the defendant’s response demonstrably weak.

    Summary

    This case concerns the application of res ipsa loquitur in the context of a summary judgment motion. The plaintiff sued for injuries sustained when roofing material fell and hit him. The Appellate Division reversed the Supreme Court’s grant of summary judgment to the plaintiff based on res ipsa loquitur, stating that res ipsa loquitur cannot be the basis for summary judgment in favor of a plaintiff on the issue of liability. The Court of Appeals affirmed the reversal, holding that summary judgment based on res ipsa loquitur for the plaintiff is only appropriate in the rarest of cases where the plaintiff’s circumstantial proof is compelling, and the defendant’s response is weak, leaving no question of fact for determination.

    Facts

    Fabio Pardo allegedly sustained fatal injuries while delivering building materials to a job site managed by Rais Construction Company. According to the Pardos, a roll of roofing material fell from the roof and struck Fabio on the head. Cesar Rais testified that his crew had stopped work at the site three days before the alleged incident, and he never left roofing materials on the roof. Barry Kleinman, the homeowner, supported Rais’s assertions, stating he saw no evidence of work being done on the day in question and that fresh snow was undisturbed.

    Procedural History

    The Supreme Court initially denied the plaintiff’s motion for summary judgment. Upon reargument, the court granted summary judgment to the plaintiff against the Rais defendants based on res ipsa loquitur. The Appellate Division reversed, holding that res ipsa loquitur cannot be the basis for granting summary judgment in favor of a plaintiff. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether res ipsa loquitur can ever serve as the basis for granting a plaintiff summary judgment on the issue of liability.

    Holding

    No, not usually, but theoretically possible; the order of the Appellate Division is affirmed because there are material questions of fact for trial. Summary judgment or a directed verdict for the plaintiff based on res ipsa loquitur is only appropriate in the exceptional case in which no facts are left for determination because the plaintiff’s circumstantial proof is compelling, and the defendant’s response is weak.

    Court’s Reasoning

    The Court reviewed the history and development of the res ipsa loquitur doctrine, emphasizing that it allows a jury to infer negligence from circumstantial evidence when direct proof is lacking. The court highlighted the criteria for applying res ipsa loquitur: (1) the event must be of a kind that ordinarily does not occur in the absence of negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not be due to any voluntary action or contribution on the part of the plaintiff.

    The Court clarified that res ipsa loquitur creates an inference, not a presumption, of negligence. It emphasized that summary judgment or a directed verdict for the plaintiff is exceedingly rare in res ipsa loquitur cases. It is only appropriate when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of negligence is inescapable.

    The Court acknowledged the potential for confusion arising from the interchangeable use of “inference” and “presumption.” Ultimately, the Court held that the summary judgment issue should be resolved by evaluating the circumstantial evidence under the Kambat/Corcoran test for res ipsa loquitur. Because there were material questions of fact for trial the order of the Appellate Division was affirmed.

  • States v. Lourdes Hospital, 100 N.Y.2d 22 (2003): Expert Testimony and Res Ipsa Loquitur in Medical Malpractice

    100 N.Y.2d 22 (2003)

    Expert medical testimony is admissible to help a jury determine whether an injury would ordinarily occur in the absence of negligence, even when the matter is outside the common knowledge of laypersons, for the purpose of establishing the first element of res ipsa loquitur.

    Summary

    Kathleen States sued her anesthesiologist, alleging her arm was injured during surgery due to negligent positioning. Lacking direct evidence of negligence, States sought to invoke res ipsa loquitur, offering expert testimony that her injuries wouldn’t occur absent negligence. The New York Court of Appeals addressed whether expert testimony is admissible to establish the first element of res ipsa loquitur – that the injury ordinarily doesn’t occur without negligence – in cases outside the common knowledge of laypersons. The Court held that expert testimony is indeed admissible to help the jury bridge the gap between their common knowledge and the specialized knowledge needed to determine whether the injury typically results from negligence. This allows the jury to consider the res ipsa loquitur inference.

    Facts

    Kathleen States underwent surgery for ovarian cyst removal. During the surgery, while under anesthesia, she alleges that her right arm was negligently positioned, specifically hyperabducted beyond a 90-degree angle for an extended period. She complained of pain and burning when an IV was inserted into her right hand prior to surgery. Upon waking, she experienced increased pain in her right arm and shoulder. She was later diagnosed with right thoracic outlet syndrome and reflex sympathetic dystrophy. She claimed the injury was a result of the negligent positioning of her arm during the surgery.

    Procedural History

    The Supreme Court denied the defendant’s motion for summary judgment, finding that the jury could rely on expert medical opinion to support the conclusion that the injury would not have occurred in the absence of negligence. The Appellate Division reversed, holding that the inference was not permitted since the injury was not the sort as to which a jury could draw upon its common knowledge to conclude that it would not have occurred absent negligence. The plaintiff appealed to the New York Court of Appeals based on a two-Justice dissent.

    Issue(s)

    Whether expert medical testimony is admissible to establish the first element of res ipsa loquitur—that the injury ordinarily does not occur in the absence of negligence—when the determination of whether such an event would occur is outside the common knowledge of laypersons.

    Holding

    Yes, because expert testimony may be properly used to help the jury “bridge the gap” between its own common knowledge and the specialized knowledge necessary to determine whether the occurrence would normally take place in the absence of negligence.

    Court’s Reasoning

    The Court reasoned that the doctrine of res ipsa loquitur allows a jury to infer negligence from the mere occurrence of an event, provided that the event is of a kind that ordinarily does not occur in the absence of negligence, the injury was caused by an agent or instrumentality within the exclusive control of the defendant, and the plaintiff did not contribute to the event. The court addressed the specific issue of whether expert testimony is permissible to establish the first element of res ipsa loquitur. It acknowledged that while res ipsa loquitur traditionally relies on everyday experience, the increasing specialization of society necessitates allowing expert testimony to inform the jury’s understanding in cases involving complex matters. The court emphasized that expert opinion serves to educate the jury and enlarge its understanding, but the jury remains responsible for drawing the ultimate conclusion. The court quoted the Restatement (Second) of Torts § 328D, Comment d, stating that expert testimony is essential where “there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion.” The Court cited Connors v University Assoc. in Obstetrics & Gynecology, Inc., 4 F.3d 123, 128 (2d Cir. 1993) noting that expert testimony can bridge the gap between the jury’s common knowledge and the common knowledge of physicians. The court emphasized that allowing expert testimony does not relieve the plaintiff of the burden of proof or negate the jury’s role as the finder of fact. It merely permits the jury to infer negligence based on evidence that the injury-causing event would not normally occur unless someone was negligent. The defendant retains the right to rebut this inference with evidence to the contrary. The Court concluded by stating that the jury should hear from the plaintiff’s experts to determine whether the injury would normally occur in the absence of negligence, and the defendant should have the opportunity to present evidence that the injury is an inherent risk of the procedure not entirely preventable with reasonable care. “In an increasingly sophisticated and specialized society such as ours, it is not at all surprising that matters entirely foreign to the general population are commonplace within a particular profession or specially trained segment of society.”

  • Fenzel v. St. Francis Hosp., 1192 N.E.2d 492 (N.Y. 1997): Res Ipsa Loquitur Applies When a Foreign Object Is Left in a Patient

    1192 N.E.2d 492 (N.Y. 1997)

    Res ipsa loquitur allows a jury to infer negligence when an event occurs that ordinarily wouldn’t happen without negligence, the defendant had exclusive control over the instrumentality, and the plaintiff didn’t contribute to the injury; this can apply in medical malpractice when a foreign object is left inside a patient, even with conflicting expert testimony.

    Summary

    Florence Fenzel underwent a hysterectomy performed by Dr. Sperrazza at St. Francis Hospital. Post-surgery, she experienced stomach pain, and an X-ray revealed a large laparotomy pad in her abdomen. The pad was surgically removed, but Fenzel’s condition deteriorated, and she died. Her family sued, alleging negligence. The trial court refused to instruct the jury on res ipsa loquitur, and the jury found for the defendants. The New York Court of Appeals reversed, holding that res ipsa loquitur was applicable because leaving a large surgical pad inside a patient is the type of event that doesn’t occur absent negligence, and expert testimony didn’t preclude its application.

    Facts

    Florence Fenzel underwent a hysterectomy performed by Dr. Ralph Sperrazza at St. Francis Hospital in August 1986. Ten laparotomy pads were available and used during the procedure. Several months after the operation, Fenzel began experiencing stomach pain. X-rays revealed a foreign object in her abdomen. A subsequent surgery revealed a large (18-by-18 inch) laparotomy pad inside her bowel. Fenzel’s condition worsened, and she died from infection-related illnesses.

    Procedural History

    Fenzel’s family sued Dr. Sperrazza and St. Francis Hospital for medical malpractice. The trial court denied the plaintiffs’ request to instruct the jury on res ipsa loquitur. The jury returned a verdict for the defendants. The plaintiffs moved to set aside the verdict, which was denied. The Appellate Division affirmed. The New York Court of Appeals reversed the Appellate Division’s order, granting a new trial.

    Issue(s)

    Whether the trial court erred in refusing to instruct the jury on the doctrine of res ipsa loquitur in a medical malpractice case where a laparotomy pad was left inside the patient’s abdomen following surgery.

    Holding

    Yes, because leaving a large laparotomy pad inside a patient’s abdomen following surgery is the kind of event that ordinarily does not occur in the absence of negligence, and the defendants had exclusive control over the instrumentality that caused the injury. The plaintiffs satisfied the conditions necessary for a res ipsa loquitur instruction.

    Court’s Reasoning

    The Court of Appeals stated that res ipsa loquitur allows a jury to infer negligence from the circumstances of an accident where the specific cause is unknown. The court outlined the three conditions necessary for res ipsa loquitur to apply: (1) the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

    The Court emphasized that the plaintiff doesn’t need to eliminate all other possible causes, but only needs to show that negligence is the most likely explanation. The court stated, “Manifestly, the lay jury here did not require expert testimony to conclude that an 18-by-18-inch laparotomy pad is not ordinarily discovered inside a patient’s abdomen following a hysterectomy in the absence of negligence.” The court distinguished this type of case from those requiring expert testimony to establish the standard of care. The fact that the defendants presented an alternative theory (that the patient swallowed the pad) did not preclude the application of res ipsa loquitur; it merely presented a question of fact for the jury to decide. The Court noted, “[F]rom this the jury may still be permitted to infer that the defendant’s witnesses are not to be believed, that something went wrong with the precautions described, that the full truth has not been told”.

  • Dittmer v. Isley, 49 N.Y.2d 735 (1980): Establishing Negligence and Control in Property Damage Cases

    Dittmer v. Isley, 49 N.Y.2d 735 (1980)

    In property damage claims, a plaintiff must provide prima facie evidence of the defendant’s control over the premises and negligence in the performance of work to recover damages.

    Summary

    This case concerns a property damage claim where the plaintiff, Dittmer, sought damages from Isley for a ceiling collapse. The New York Court of Appeals affirmed the dismissal of the complaint, holding that the plaintiff failed to provide sufficient evidence that the defendant controlled the premises at the time of the collapse or that the defendant was negligent in performing the work. The court emphasized that the plaintiff’s evidence consisted primarily of hearsay and lacked specific proof of negligence. Furthermore, the absence of proof of control precluded the application of the doctrine of res ipsa loquitur.

    Facts

    The plaintiff, Dittmer, sought to recover damages from the defendant, Isley, after a ceiling collapsed on property owned by Dittmer’s subrogor. The plaintiff attempted to establish negligence through the testimony of Ralph Bank, the president of the subrogor. Bank’s testimony consisted of a hearsay conversation with Irving Buller, the deceased president of the defendant, Isley. Buller allegedly told Bank that unnamed individuals involved in demolition work were unaware that a wall they were removing supported the ceiling. There was no direct evidence presented demonstrating Isley’s control over the premises or specific acts of negligence that caused the ceiling to collapse.

    Procedural History

    The case originated in a lower court, where the plaintiff’s complaint was dismissed. The Appellate Division affirmed the dismissal. The case then went to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order, upholding the dismissal of the complaint.

    Issue(s)

    1. Whether the plaintiff presented prima facie proof that the defendant was in control of the damaged premises at the time of the ceiling collapse?
    2. Whether the plaintiff presented prima facie proof of negligence in the defendant’s performance of the work that led to the ceiling collapse?
    3. Whether the doctrine of res ipsa loquitur applies in the absence of proof of the defendant’s control over the premises?

    Holding

    1. No, because the record lacks sufficient evidence demonstrating that the defendant was in control of the premises when the ceiling collapsed.
    2. No, because the plaintiff’s evidence of negligence was primarily hearsay and lacked specific details demonstrating negligence in the performance of work.
    3. No, because proof of control is an essential prerequisite for applying the doctrine of res ipsa loquitur.

    Court’s Reasoning

    The Court of Appeals found that the plaintiff failed to establish a prima facie case for negligence. The court highlighted the lack of direct evidence demonstrating the defendant’s control over the premises at the time of the ceiling collapse. The primary evidence of negligence came from Ralph Bank, whose testimony consisted of a hearsay conversation with the deceased president of the defendant, Irving Buller. The court noted that Bank disclaimed any personal knowledge and that the alleged conversation lacked specific details demonstrating negligence. The court stated, “Our review of the scant record in this case fails to disclose prima facie proof that the defendant was in control of the damaged premises at the time the ceiling collapsed or that there was negligence in the performance of the work.” The court further emphasized that without proof of control, the doctrine of res ipsa loquitur could not be applied. The court reasoned that control is a necessary predicate for the application of res ipsa loquitur, as it helps to establish that the defendant was the party most likely responsible for the negligence. Because the plaintiff failed to provide sufficient evidence of both control and negligence, the Court affirmed the dismissal of the complaint. The court implicitly relied on the established principle that a plaintiff bears the burden of proving the elements of negligence, including duty, breach, causation, and damages.

  • Feblot v. New York Times Co., 32 N.Y.2d 486 (1973): Limits of Res Ipsa Loquitur in Self-Service Elevator Accidents

    Feblot v. New York Times Co., 32 N.Y.2d 486 (1973)

    Res ipsa loquitur is inapplicable in cases where the plaintiff had control over the instrumentality (here, a self-service elevator door) causing the injury and the accident could have occurred without the defendant’s negligence.

    Summary

    Eve Marie Feblot sued the New York Times Company for injuries sustained when a self-service elevator door closed on her. The trial court submitted the case to the jury on a res ipsa loquitur theory, and the jury found for Feblot. The Court of Appeals reversed, holding that res ipsa loquitur was inapplicable because Feblot had control over the elevator doors and the accident could have happened without negligence on the part of the New York Times Company. The court also found that the trial court erred in excluding evidence of a prior inconsistent statement made by a witness.

    Facts

    Miss Feblot, a 63-year-old masseuse, visited Arthur Hays Sulzberger’s office on the 14th floor of the New York Times Building. While entering a self-service elevator to leave, the elevator door closed on her, striking her right shoulder and arm. She claimed the door closed suddenly and forcefully, causing injury. The elevator was equipped with a rubber safety edge. The receptionist, Griffin, was present in the corridor.

    Procedural History

    The trial court dismissed the complaint against Westinghouse (the elevator service company) but denied the New York Times’ motion to dismiss. The case was submitted to the jury against the New York Times solely on the theory of res ipsa loquitur. The jury returned a verdict for Feblot. The New York Times’ motions to set aside the verdict, for dismissal, and for a directed verdict were denied. The New York Times appealed.

    Issue(s)

    1. Whether the doctrine of res ipsa loquitur was applicable under the presented facts.
    2. Whether the Trial Justice erred in excluding from evidence the written accident report of Zaccor and in refusing to allow Zaccor to give the complete account of the accident, as reported to him by the receptionist, Griffin, after the door therefor had been opened on the plaintiff’s cross-examination of Zaccor?

    Holding

    1. No, because the plaintiff had some control over the elevator door, and the incident could have occurred without negligence on the part of the defendant.
    2. Yes, because the plaintiff opened the door to this testimony on cross-examination.

    Court’s Reasoning

    The court reasoned that res ipsa loquitur applies only when the instrumentality causing the injury is in the exclusive control of the defendant, and the accident would not ordinarily occur without negligence. The court stated, “[I]f the instrumentality causing the injury to the plaintiff was ‘in the exclusive possession and control of the person charged with negligence * * * and * * * the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff’.” In this case, Feblot had some control over the elevator doors, as she activated the mechanism controlling their operation and determined when and how to enter the elevator. The court noted she could have caused the doors to reopen by touching the safety edge. The court distinguished this case from falling elevator or defective interlock cases, where the plaintiff has no control over the elevator’s mechanism.

    Furthermore, the court held it was error to exclude the written accident report of Zaccor and his testimony regarding Griffin’s account of the accident. Because plaintiff’s counsel questioned Zaccor on cross-examination about the report and his conversation with Griffin, the defendant should have been allowed to present the full account of the report to the jury. The court reasoned that “the plaintiff’s attorney on his cross-examination of Zaccor so far exceeded the limits of proper cross-examination in bringing out further matters, which were not mentioned on direct examination and which created such a wholly erroneous impression in the minds of the jury as to the content of the oral report of the accident which Zaccor had received from Griffin, that Times clearly should have been afforded an opportunity to present the full account of this report to the jury.”

  • Hacker v. City of New York, 26 N.Y.2d 755 (1970): Establishing Scope of Employment for Negligence with City-Mandated Equipment

    Hacker v. City of New York, 26 N.Y.2d 755 (1970)

    When a police officer is required by the city to carry a weapon at all times, there is a rebuttable presumption that the officer is acting within the scope of employment when the weapon discharges, placing the burden on the city to prove otherwise.

    Summary

    Anna Hacker sued the City of New York and her husband, a probationary patrolman, after being shot and crippled by her husband’s service revolver. She alleged the shooting resulted from her husband’s negligence due to inadequate training provided by the city. The trial court found in favor of the plaintiff, but the Appellate Division reversed, citing a lack of explanation for the shooting and uncertainty regarding the officer’s scope of employment. The Court of Appeals affirmed the reversal. The dissent argued that because the city required the officer to carry the gun, a presumption arises that its discharge occurred within the scope of his employment, shifting the burden to the city to prove otherwise.

    Facts

    Anna Hacker was visiting her brother-in-law’s apartment. While in a bedroom separated from the living room by a kitchen, she was shot by a revolver owned by her husband, George Hacker, a probationary patrolman. The bullet severely injured her, causing permanent disability. George was required to carry his service revolver at all times as part of his employment as a probationary patrolman.

    Procedural History

    Anna Hacker sued the City of New York and her husband in the Supreme Court. The liability issue was tried separately without a jury, and the trial court rendered judgment in favor of the plaintiff. The Appellate Division reversed the trial court’s judgment. The New York Court of Appeals affirmed the Appellate Division’s reversal.

    Issue(s)

    Whether a probationary patrolman, required by the City of New York to carry a revolver at all times, is presumed to be acting within the scope of his employment when the revolver discharges, thereby placing the burden on the city to prove otherwise in a negligence action arising from the discharge?

    Holding

    No. The Court of Appeals upheld the Appellate Division’s reversal of the trial court’s judgment in favor of the plaintiff. The dissent argued that a presumption existed that the patrolman was acting within the scope of his employment, and the burden should have shifted to the city.

    Court’s Reasoning

    The majority’s reasoning is not explicitly stated in the provided dissent, as the excerpt focuses on the dissenting judge’s argument. However, the dissent critiqued the Appellate Division’s basis for reversal, which was the lack of a credible explanation for the accident. Judge Keating, in dissent, argued that requiring the patrolman to carry the gun as part of his employment created a presumption that any negligence in carrying or handling the gun occurred within the scope of his employment. The dissent referenced People v. Peters, 18 N.Y.2d 238, noting the officer was duty-bound to act in his official capacity even when technically off-duty. The dissent also cited Collins v. City of New York, 11 Misc.2d 76, to support the view that the officer’s possession of the revolver could be deemed within the course of his employment.

    Keating argued: “For any negligence in carrying or handling the gun the city would be responsible. Somehow, while he was so carrying the weapon, it discharged. It seems to me only reasonable, under these circumstances, to presume the weapon was being used in the course of the patrolman’s employment, and the burden of establishing that it was not so used should be on the city which, for its own benefit, required that the weapon be carried at all times.”

    The dissent also invoked the doctrine of res ipsa loquitur, suggesting that the accident itself implies negligence on the patrolman’s part. The lack of complete training in handling the revolver further supported this inference. The dissenting judge concluded that the plaintiff presented sufficient evidence to establish the patrolman was acting within the scope of his employment, unless the city could provide substantial evidence to the contrary. The city only discredited the patrolman’s version of events, failing to prove he was using the weapon for personal gain at the time of the accident.

  • Corcoran v. Banner Super Market, Inc., 21 N.Y.2d 425 (1968): Applying Res Ipsa Loquitur to Jointly Controlled Instrumentalities

    Corcoran v. Banner Super Market, Inc., 21 N.Y.2d 425 (1968)

    The doctrine of res ipsa loquitur can be applied against multiple defendants who share control and responsibility over an instrumentality when an accident indicates a failure of duty by each, even if neither has sole control.

    Summary

    Olga Corcoran was injured by a falling board between two adjacent stores. She sued the owner of one store (Kane’s estate) and the lessee (Banner Super Market). The court initially applied res ipsa loquitur against the owner but not the lessee. An appellate court reversed, finding res ipsa loquitur inapplicable due to joint control with a non-defendant. After retrial, the complaint was dismissed against both defendants. The New York Court of Appeals modified the appellate decision, holding that res ipsa loquitur could apply against the owner because of their shared duty to maintain the area, but not against the lessee who had no such duty.

    Facts

    Olga Corcoran was walking past two adjacent stores on Flatbush Avenue when she was struck by a falling board located in the space between the buildings, which caused her injuries. One store, 2052 Flatbush Avenue, was a fruit store owned by a non-party. The other, 2054 Flatbush Avenue, was owned by Margaret Kane (her executors are defendants) and leased to Banner Super Market, Inc. The board that fell was situated such that approximately one inch rested on the Kane property and four and a half inches on the fruit store property.

    Procedural History

    The trial court initially found for the plaintiff against Kane’s estate, applying res ipsa loquitur, but not against Banner. The Appellate Division reversed the judgment against Kane’s estate, arguing res ipsa loquitur was inapplicable due to joint control with the non-defendant fruit store owner, and ordered a new trial. On retrial, the court dismissed the complaint against both defendants, finding no basis for res ipsa loquitur or actual negligence. The Appellate Division affirmed but granted leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether the doctrine of res ipsa loquitur applies to the owner of the property where the falling board was partially located, given that an adjacent property owner also shared control over the board.
    2. Whether the doctrine of res ipsa loquitur or evidence of specific negligence applies to the lessee of the property.

    Holding

    1. Yes, because the owner had a duty to inspect the portion of the board on their property, independent of the adjacent owner’s duty, and the accident indicates a failure of that duty.
    2. No, because the lessee had no duty under the lease to maintain or repair the exterior of the building, and the evidence did not establish specific negligence on their part.

    Court’s Reasoning

    The court addressed the elements of res ipsa loquitur: (1) the event ordinarily does not occur absent negligence; (2) the instrumentality is within the defendant’s exclusive control; and (3) the plaintiff did not contribute to the event. While the first and third conditions were met, the second, exclusive control, was the main point of contention. The court reasoned that the purpose of the exclusive control requirement is to establish that the defendant’s negligence was the probable cause of the accident. Quoting Prosser, “[I]t is still necessary to bring it home to the defendant.” The court noted that the requirement has been relaxed in cases such as Zentz v. Coca Cola Bottling Co., where control at the time of the accident is not required if the instrumentality was not mishandled after leaving the defendant’s control.

    The court cited Schroeder v. City & County Sav. Bank where res ipsa loquitur was applied against multiple defendants with shared supervision over a barricade. Similarly, in this case, the board was partially on the owner defendant’s property, creating a duty to inspect, separate from the fruit store owner’s duty. The court stated, “This type of accident permits the inference that each owner failed in his duty, and that if either had fulfilled his duty the accident would not have happened.” Thus, res ipsa loquitur could be applied against the owner. The court distinguished the lessee, Banner Super Market, because the lease did not obligate them to maintain the building’s exterior, and there was no evidence of specific negligence on their part.

  • Breen v. New York Central & Hudson River Railroad Co., 109 N.Y. 297 (1888): Res Ipsa Loquitur in Common Carrier Cases

    109 N.Y. 297 (1888)

    In cases involving common carriers, an accident that injures a passenger raises a presumption of negligence on the part of the carrier, shifting the burden to the carrier to prove it was not negligent.

    Summary

    The plaintiff was injured while exiting a train when it suddenly started. She sued the railroad company, alleging negligence. The court addressed whether the mere occurrence of the accident created a presumption of negligence against the railroad. The Court of Appeals held that because the train’s operation was under the railroad’s control and the accident was one that ordinarily would not occur if the carrier used proper care, a presumption of negligence arose. This shifted the burden to the railroad to prove it was not negligent.

    Facts

    The plaintiff was a passenger on the defendant’s elevated train. As she was stepping off the train at a station, the train suddenly started with a jerk. The sudden movement threw her down, causing severe injuries. She claimed the railroad’s negligence caused her injuries.

    Procedural History

    The plaintiff sued the New York Central & Hudson River Railroad Co. in a New York state court. The jury found in favor of the plaintiff. The defendant appealed, arguing errors in the judge’s instructions to the jury. The New York Court of Appeals affirmed the trial court’s judgment.

    Issue(s)

    Whether the occurrence of an accident on a common carrier, resulting in passenger injury, raises a presumption of negligence against the carrier, thereby shifting the burden to the carrier to prove its lack of negligence.

    Holding

    Yes, because when a passenger is injured due to an accident involving a common carrier, and that accident is one that would not ordinarily occur if the carrier exercised due care, a presumption of negligence arises against the carrier.

    Court’s Reasoning

    The court reasoned that common carriers have a duty to provide passengers a reasonable opportunity to safely exit their trains. The court noted the plaintiff’s evidence warranted a conclusion that she was not at fault for her injuries. Because the train and its movements were controlled by the defendant’s employees, the court held that the accident raised a presumption that the railroad was negligent. The court cited precedents establishing this principle, stating the burden was then on the defendant to “repel such presumption.” The defendant attempted to prove the accident was not due to a flaw in its system by presenting evidence about how its trains were operated. The defendant argued that a passenger pulling the emergency cord caused the train to start prematurely, but the jury did not find this argument persuasive, and the Court of Appeals found no error in the lower court’s instructions regarding this issue. The court emphasized that if the jury believed the passenger’s actions caused the train to start, the defendant would not be negligent, but because the jury evidently rejected that explanation, the presumption of negligence stood.