p249-252;252-255;255-267 MCDOUGALD V PERRY Facts: P was driving behind D's tractor trailer while crossing over some railroad

d tracks. A spare tire fell off of D's truck and hit P's windshield. The tire was secured by a chain that came with the trailer in 1969. D testified that he did a pre-trip inspection of the chain but did not check every link in the chain. Procedural History: Trial court found for P. Appellate court reversed, found for D. FL Supreme Court reversed, found for P. Issues: Does the doctrine of res ipsa loquitur apply to the facts of this case? the thing speaks for itself -it is a rule of evidence that permits but does not compel an inference of negligence under certain circumstances -provides P with a common sense inference of negligence where direct proof of negligence is wanting -P must estb that the instrumentality causing her injury was under the exclusive control of D and that accidence is one that would not in the ordinary course of events occurred without negligence on the part of one in control -mere fact that accident occurs does not support application of doctrine Holding/Rule: Res ipsa loquitur does apply to this case since the instrumentality causing the injury was under the exclusive control of the D and some sort of negligence was required for this accident to occur. Proper analysis of this issue: -1. Type of event: past experience reasonably permits conclusion that such events do not ordinarily occur unless someone has been negligent. To such events res ispa loquitur may apply -2. Basis of Conclusion: expert testimony where there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion; other kinds where no expert is needed to tell the jury that such events do not usually occur in the absence of negligence Reasoning: tire becoming loose is the type of accident which on the basis of COMMON EXPERIENCE and as a matter of GENERAL KNOWLEDGE would not occur BUT FOR the failure to exercise reasonable due care by the person who had control of the spare tire common sense dictates an inference that both a spare tire carried on a truck + wheel on a trucks axel will stay with the truck unless there is a failure of reasonable care by the person or entity in control of the truck inference of negligence comes from proof of the circumstances of the accident p is not required to eliminate with certaintiy all other possible causes or inferencesall that is required is evidence from which reasonable persons can say that on the whole ti is more likely that there was negligence associated with the cause of the event than that there was not common sense: reference to byrne Res ipsa permits but does not compel an inference of negligence in certain cases. P is required to show that the accident would not have occurred but for the D's breach of due care. The spare tire escaping form the cradle is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire. P is not required to eliminate with certainty all other possible causes or inferences. All that is required is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event that that there was not. LARSON V ST. FRANCIS HOTEL Facts:

On V-J day, P was walking on the sidewalk beside D's hotel when she was struck on the head by an arm chair + knocked unconscious No one saw where the chair came from nor was there any identification of the chair belonging to the hotel It is a reasonable inference that the chair came from some portion of the hotel.. Procedural History: Trial court directed a verdict for D. CA COA affirmed. Issues: Does res ipsa loquitur apply in this case? -TC held that it didnt -Gerhart v. Soutehr California Gas Co. test for applicability of the doctrine: for a P to make out a case entitling him to the benefit of the doctrine he MUST PROVE: 1. that there was an accident 2. that the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the D 3. that the accident was such that in the ordinary course of events, the D using ordinary care, the accident would not have happened res ispa loquitur applies only where the cause of the injury is shown to be under the exclusive control and management of the D and can have no application to a case having a divided responsibility where an unexplained accident may have been attributable to oen of several causes for some of which the D is not responsible -where it appears that the injury was caused by one of two causes for one D is responbile but not for other : p must fail Holding/Rule: This case does not qualify for res ipsa loquitur since the accident was not one such that the accident would not have happened if the D was using ordinary care. Reasoning: P must fail when it appears that the injury was caused by one of two causes and one is just as likely as the other. A hotel does not have exclusive control over its furniture. Guests have at least partial control Mishap would be quite as likely be due to the fault of a guest or other person as to that of D Thus occurrence is not such as ordinarily does not happen without the negligence of the party chargedcould happened despite the fact that D used reasonable care and were totally free from negligence The accident might happen despite the fact that the Ds used reasonable care and were totally free from negligence. To keep guests from doing this would require posting a guard in each room. YBARRA V SPANGARD (action for damages for personal injuries during operation) Facts: P consulted D about appendicitis and made arrangements for surgery. After P woke up from surgery, he experienced pain in his shoulder that was not there before. It got worse until part of his shoulder was paralyzed and atrophied. P sued everyone involved in the surgery. Procedural History: Trial court directed a verdict for D. CA Supreme Court reversed, remanded. Issues: Must a P bringing suit in res ipsa loquitur prove which of the set of Ds was directly responsible for his injury? PS ARGUMENT: evidence presents a proper case for doctrine of res ispa loquitur

Ds ARGUMENT: assuming that Ps condition was in fact the result of an injury, there is no showing that the act of any particular D, nor any particular instrumentality was the cause thereof -MAIN DEFENSE: -1. That where there are several D and division of responsibility in the use of an instrumentality causing the injury and thei injury might have resulted from the sperate act of either one of two or more persons the rule of RIL cannot be invoked against any of them 2. that there are several instrumentality and no showing is made as to which caused the injury or as to the particular D in control of it the doctrine cannot apply *under Ds argument P would be entirely unable to recover unless Doctors and nurses in attendance voluntarily chose to disclose the indentity of the negligent person and the facts establishing liability Holding/Rule: A P bringing a suit in res ipsa loquitur is not required to prove which of the set of Ds was directly responsible for the injury. Condition that injury not due to Ps voluntary action fully satisfied under evidence + condition where accident one that does ordinarly not occur unless someone is negligent No prob of negligence in treamtment but of distinct injury to a healthy part fo the body not the subject of treament nor within the area covered by the operation Reasoning: Res ipsa is particularly applicable in a case involving a patient who is knocked out during surgery. If a knocked out patient is required to prove which doctor was responsible for the injury, no claim would ever be brought. The number or relationship of the Ds alone does not determine whether the doctrine applies. Do not believe that either ht enumber or relationship of the Ds alone determines whether the doctrine of RIL applies. Every D in whose custody the P was palced for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard When a P receives unusual injuries while unconscious and in the course of medical treatment, all those Ds who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. SULLIVAN V CRABTREE Facts: P was killed while a guest in a tractor trailer. The truck swerved off the road when another truck passed it on a curve. D testified that there was some loose gravel on the road and that he just lost control. P's family sued D in negligence. Procedural History: Lower Court found for P. TN COA reversed, found for D. Issues: When res ipsa loquitur applies, must the jury be instructed that negligence was present? P ARGUMENT: duty of care owing by D to the deceased under rule that a driver must use ordinary care for the safety of his guest and to make out a breach of that duty, or prox negligence, they invoke the rule of RIL since D did not know why he lost control of the truck or what caused the accident, jury bound to find that it was caused by his negligence MAXIM RES ISPA LOQUITUR: the facts of the occurrence evidence negligence; the circumstances unexplained justify an inference of negligegence Generally does not apply to car accidents but may if its within the drivers control and accident does not usually occur without negligence Holding/Rule: When res ipsa loquitur applies, it merely creates the inference of negligence which the jury may draw from or not. Reasoning:

In cases where a car runs off of the road, res ipsa usually applies and does here. The accident was such as does not usually occur without negligen and the cause of it was in control of the dirver or rather it resulted from his loss of control of the truck which he could not explain RIL 3 different effects: 1. It warrants an inference of negligence which the jury may draw or not as their judgment dictracts 2. It raises a presumption of negligence which requires the jury to find negligence if the D does not produce evidence sufficient to rebut the presumption 3. It not only raies such a presumption but also shifts the ultimate burden of proof to D and requires him to prove by preponderance of all the evidence that the injury was not caused by his negligence RIL AFFORDS REASONABLE EVIDENCE IN THE ABSENCE OF AN EXPLANTION BY D THAT THE ACCIDENT AROSE FROM NEGLIGENCE A jury can reasonably refuse to find negligence on the part of the D even in the face of res ipsa. Res ipsa has had three differing effects in different cases It warrants an inference of negligence which the jury may draw or not It raises a presumption of negligence which requires the jury to find negligence if D does not produce evidence sufficient to rebut the presumption. It not only raises such presumption but shifts the ultimate burden of proof to the D and requires him to prove by a preponderance of the evidence that the injury was not caused by his negligence. In ordinary cases, res ipsa merely makes a case for the jury. -since conflicting infenreces muight be drawn it was for the jury to choose th inference they thought most probale