Chapter 66: Res Ipsa Loquitor in Non-Medical Negligence Cases
The Case: Burton v. Warren Farmers Co-op. , 129 S.W.3d 513 (Tenn. Ct. App. 2002).
The Basic Facts: A farmer filed a suit against a co-op alleging that his crop was damaged by the manner in which the co-op sprayed herbicide on his fields earlier in the growing season.
The Bottom Line:
- "Persons asserting a common-law negligence claim must prove all the elements of their case using either direct evidence, circumstantial evidence, or a combination of the two. Morrow v. Town of Madisonville, 737 S.W.2d 547, 548 (Tenn. Ct. App. 1987); Troutt v. Branham, 660 S.W.2d 502, 506 (Tenn. Ct. App. 1983). They customarily prove their case by producing direct evidence regarding the defendant's specific conduct. Cases that fit within the res ipsa loquitur doctrine are exceptions to this general rule." 129 S.W.3d at 523.
- "Plaintiffs relying on res ipsa loquitur need not prove specific acts of negligence by the defendant to get their case to the jury. Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d 91, 96 (Tenn. Ct. App. 1983); Parker v. Warren, 503 S.W.2d 938, 942 (Tenn. Ct. App. 1973). They may instead base their case on the circumstances surrounding the injury if common experience indicates '(1) that the injury was probably the result of negligence, even though the exact nature of the negligence is unknown, and (2) that it was probably the defendant who was the negligent person.'FN4 [1 Dan B. Dobbs, The Law of Torts § 154, at 371 (2001)] ("Dobbs"); Underwood v. HCA Health Servs. of Tenn., Inc., 892 S.W.2d at 426 (holding that res ipsa loquitur 'permits a fact-finder to infer that a defendant was negligent when the circumstances of the injury would cause a reasonable person to conclude that the injury would not have occurred had it not been for the defendant's negligence'); Boykin v. Chase Bottling Works, [222 S.W.2d 889, 895 (Tenn. Ct. App. 1949)] (holding that res ipsa loquitur provides the means for determining whether the inferences to be drawn from the circumstances surrounding an injury 'furnish a rational basis for a conclusion that it is more likely than not that (1) the injury was due to the negligence of someone, and (2) that the defendant was the responsible party').
FN4 Several cases have stated that the res ipsa loquitur doctrine cannot be invoked unless the nature and circumstances of the injury permit 'no reasonable inference but that the injury complained of was due to the negligence of defendant . . ..' Coca-Cola Bottling Works v. Sullivan, [158 S.W.2d 721, 726 (Tenn. 1942)]; Fulton v. Pfizer Hosp. Prods. Group, Inc., 872 S.W.2d 908, 912 (Tenn. Ct. App. 1993), or unless 'the circumstances leave no room for different inferences.' Susman v. Mid-South Fair, Inc., [176 S.W.2d 804, 805 (Tenn. 1944)]. Stating the requirement in this way is unduly restrictive because it effectively requires a plaintiff to prove a civil case beyond a reasonable doubt. [W. Page Keeton, Prosser and Keeton on the Law of Torts § 39, at 248 (5th ed. 1984)] ("Prosser and Keeton"). A plaintiff is not required to eliminate all other causes of his or her injury to invoke the res ipsa loquitur doctrine. Roberts v. Ray, [322 S.W.2d 435, 437 (Tenn. Ct. App. 1958)]. All that is required is evidence from which reasonable persons can say that, on the whole, it is more likely that negligence attributable to the defendant caused the plaintiff's injury. [Dobbs § 155, at 373]; [4 Fowler V. Harper et al., The Law of Torts § 19.7, at 45-46 (2d ed. 1986)] ("Harper")."Id . at 523-24.
- "The courts must take care to avoid applying the res ipsa loquitur doctrine in a way that undermines our system of tort liability based on fault. FN5 [Harper § 19.5, at 27-30]. It is not enough for a plaintiff to prove that he or she was injured by some unidentified person's negligence. Even though there is beyond all reasonable doubt 'negligence in the air,' the plaintiff must still bring the negligence home to the defendant. Prosser and Keeton § 39, at 248. The plaintiff must present evidence that affords a rational basis for concluding that the negligent conduct that caused the injury is probably attributable to the defendant. Dobbs § 157, at 378; Harper § 19.7, at 45-46.
FN5 The Tennessee Supreme Court adopted Tennessee's system of modified comparative fault to tighten the fit between liability and fault. Carroll v. Whitney, 29 S.W.3d 14, 16 (Tenn. 2000). "Id. at 524.
- "The 'exclusive control' element of the res ipsa loquitur doctrine, if read too literally, is overly restrictive. Res ipsa loquitur cannot be applied unless the circumstances surrounding the injury indicate that the causal negligence was probably the defendant's, not that of another person. Dobbs § 157, at 378. Evidence that the plaintiff was injured by an instrumentality that was in the defendant's exclusive control at the time is sufficient for this purpose. However, proving a defendant's exclusive control of an instrumentality when an injury occurs is not the only way to demonstrate the defendant's responsibility for the injury. [Harper § 19.7, at 45-46]. Tennessee's courts, like their counterparts in other states, have approved the application of res ipsa loquitur in cases involving foreign objects in sealed containers and exploding soft drink bottles where the defendant could not be said to have been in 'exclusive control' of the injury-causing instrumentality when the injury occurred. Coca Cola Bottling Works, Inc. v. Crow, [291 S.W.2d 589, 591 (Tenn. 1956)] (exploding bottle); Coca-Cola Bottling Works v. Sullivan, [158 S.W.2d at 725-26] (foreign object in a sealed container). These cases indicate that Tennessee's courts do not view 'exclusive control' as indispensable to the application of the res ipsa loquitur doctrine." Id. at 525.
- "Res ipsa loquitur is a rule of evidence, not a rule of law. Quinley v. Cocke, [192 S.W.2d 992, 996 (Tenn. 1946)]. It is intended to come to the aid of plaintiffs who have no direct evidence of a defendant's negligence, Provident Life & Accident Ins. Co. v. Professional Cleaning Serv., Inc., [396 S.W.2d at 356], by providing a specialized vehicle for considering circumstantial evidence in negligence cases. Poor Sisters of St. Francis v. Long, [230 S.W.2d 659, 663 (Tenn. 1950)]. It permits, but does not require, a fact-finder 'to infer negligence from the circumstances of an injury.' Seavers v. Methodist Med. Ctr., 9 S.W.3d at 91; Shivers v. Ramsey, 937 S.W.3d 945, 949 (Tenn. Ct. App. 1996)." Id. at 525-56.
- "The inferences permitted by the res ipsa loquitur doctrine are rebuttable. Most commonly, defendants rebut these inferences by proving (1) that they exercised reasonable care under the circumstances, (2) that the plaintiff's injury was caused by something over which they had no control, (3) that the plaintiff's injury was the sort of injury that commonly occurs without anyone's negligence, or (4) that the plaintiff's injury could not have been avoided even with the exercise of reasonable care. Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d at 96; Swiney v. Malone Freight Lines, 545 S.W.2d at 116." Id. at 527.
Other Sources of Note: Morris v. Wal-Mart Stores, Inc. , 330 F.3d 854 (6th Cir. 2003) (holding that where factual disputes remain as to how an accident occurred and whether the defendant controlled the instrumentality, res ipsa loquitur is a jury question; extensive discussion of Tennessee law on subject); Seavers v. Methodist Medical Center of Oak Ridge, Inc., 9 S.W.3d 86 (Tenn. 1999) (discussing application of the doctrine in medical negligence cases).
Recent Cases: Jenkins v. Big City Remodeling, No. E2014-01612-COA-R3-CV, 2015 WL 5695177 (Tenn. Ct. App. Sept. 29, 2015) (no res ipsa loquitor where plaintiffs could not show that builder had exclusive control of property that caught fire).