Second Department:

This is How To Apply Res Ipsa

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent Appellate Division decision applying a well-known legal theory.

One of the most confusing legal theories is res ipsa loquitur which means in Latin 'the thing speaks for itself'. This is a legal fiction which allows a jury to infer that the accident would not have happened in the absence of negligence. Because it essentially allows a jury to find a defendant liable without any further proof, this is a powerful legal doctrine which plaintiffs most of the time improperly try to use and which Courts also apply incorrectly as well. A recent case from the Second Department demonstrates how they applied res ipsa loquitur to an accident.

In Yeboah v. Metro North Commuter Railroad, the plaintiff, a passenger on a train, was injured when a ceiling panel in the train car swung open and struck her on the head. Plaintiff testified that she was sitting on the train when she heard a loud sound and the next thing she knew she was on the ground. After the commotion, she looked up and saw a hanging panel which was a cabinet utility door that had hit her on the head. Plaintiff sued Metro-North and the plaintiff moved for summary judgment on liability based on res ipsa loquitur. The lower court denied plaintiff's motion.

The Appellate Division reversed. The Second Department first set forth the three elements that a plaintiff must establish in order to be entitled to res ipsa loquitur. One, the accident is of a kind that does not ordinarily happen in the absence of defendant's negligence; two, the instrumentality causing the accident was within the defendant's exclusive control; and three, the accident was not due to any voluntary action or fault by the plaintiff.

The Second Department found that the plaintiff had met all three elements. Metro- North conceded the first and the third elements in that the accident is of a kind that ordinarily does not occur in the absence of negligence, and that the accident was not due to any voluntary action or fault of the plaintiff. Metro-North argued that it did not have exclusive control over the ceiling panel. The train foreman testified that the train's HVAC and ventilation system was accessible through the ceiling panel that hit the plaintiff. He testified that to his knowledge, no one but defendants' personnel had access to the ceiling panels and that he had no explanation for how the accident occurred. The foreman described the panel as being fastened to the ceiling with 4 screws outside and 2 safety latches and a safety chain inside.

The Second Department noted that the defendant offered no evidence to support its argument that it did not have exclusive control over the ceiling panel, offering only the theory that the accident occurred because of tampering by some unauthorized individual. The Second Department found that this was no more than speculation about what might have happened, which was insufficient to defeat plaintiff's motion. The Second Department found that this was true especially here, where the defendant's own foreman testified that to his knowledge, no one but Metro-North personnel accessed the ceiling panel.

The Court wrote that "indeed, that the panel somehow became dislodged after Metro-North employees worked on the HVAC or ventilation system is a far more 'logical conclusion' than the one counsel offers-namely that 'someone other than Metro-North employee' must have tampered with the ceiling panel while on the train". The Second Department noted that neither the defendant nor the dissent offered any reason to accept the unlikely hypothesis that a train passenger had the tools or inclination to stand in view of other passengers, and tamper with the utility door.

The dissent noted that summary judgment in res ipsa loquitur cases should be made in only the rarest of instances and the plaintiff had not met her burden on the motion for summary judgment. The dissent noted that the foreman testified that the ceiling panel could have been loosened by the use of a standard flathead screwdriver, and that this testimony is insufficient to establish defendant's exclusive control of the publicly accessible ceiling panel as a matter of law. The dissent argued that it was plaintiff's burden to establish the absence of any triable issue of fact as to whether there was any chance that the panel had been loosened by another passenger.

Given the unique facts, it appears that the majority correctly applied the res ipsa doctrine. In most cases, the element of exclusive control will be in dispute but here, it appears that Metro-North could properly said to have exclusive control over its ceiling panel. It is always critical to examine the element of exclusive control in every case where plaintiffs seek to use res ipsa loquitur.

Should you have any questions, please call.

Thomas M. Bona