16: Res Ipsa Loquitur 104-108
Sunday, February 12, 2012
10:08 PM
Reading Notes:
TITLE, PAGE AND CITATION OF CASE:
Colmenares Vivas v. Sun Alliance Insurance Co.
United States Court of Appeals, First Circuit, 1986
Page 104
Judge/Justice: Bownes
FACTS: plaintiffs seek to recover for injuries they suffered riding an escalator, claiming negligence.
A couple fell after the handrail on an escalator in an airport stopped moving while the stairs
continued. They sue airport's insurer.
PROCEDURAL HISTORY: district court granted the defendants a directed verdict for no evidence
because element of no exclusive control over instrumentality causing the injury
ISSUE: Was there exclusive control?
RULE: Puerto Rican rule for Res Ipsa Loquitor:
1. The accident must be of a kind which 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
3. It must not be due to any voluntary action on the plaintiff's part
HOLDING: reversed and remanded for trial
REASONING:
 An escalator handrail probably would not stop suddenly unless someone had been negligent
in operating or maintaining it (first element)
 The ports authority effectively had exclusive control over the escalator because he could not
delegate the duty to maintain its facilities in a safe condition even if another company
maintain the escalator (second element)
o The purpose of the rule is to eliminate the possibility that the accident was caused by a
third-party, rather than to be strictly construed as exclusive control
 The District Court found that there is no evidence that the plaintiffs caused the accident (third
element)
Dissent: the plaintiffs must show how or why a handrail malfunctioned in order to show
negligence. The court cannot assume negligence just because it stopped suddenly. The court needs
expert testimony.
DEFINITIONS, STATUTE LANGUAGE, DICTA, ETC.:
Res ipsa loquitur: the elements of duty of care and breach can be sometimes inferred from the very
nature of an accident or other outcome, even without direct evidence of how any defendant
behaved.
1. A "duty" exists for a person to act "reasonably"; and
2. A "breach" of this duty occurs because a person [or agency, etc.] acted outside this duty, or
"unreasonably"; and
3. There was "causation in fact"...the result would not have occurred "but for" the "breach" of
this duty;
4. There was actual legally recognizable harm suffered by the plaintiff who did nothing wrong
(i.e., no contributory negligence).
Upon a proof of res ipsa loquitur, the plaintiff need only establish the remaining two elements of
negligence—namely, that the plaintiff suffered harm, of which the incident result was the legal
cause. (Wikipedia)
Notes:
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Take note of the dissents: Alabama Supreme Court came to the same conclusion
Res Ipsa Loquitor is often used when the plaintiff is unable to allege or prove the particular
act of negligence caused the injury.
Procedural effect: raises a permissive inference or a presumption of negligence before the
jury
Class Notes:
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Negligence per se created by and determined by courts
o Could be created by statute
What does "exclusive control" mean?
Prong 3 includes acts that are both negligent and not - the jury is free to infer it or not - but
only if the jury finds the elements are met
Defendant should still have the opportunity to argue that they weren't the cause of the
negligence even when negligence exists
o The purpose of "exclusive control" is to ensure that no one else caused the negligence
Res Ipsa is never conclusive - rebuttable presumption
What is it really accomplishing that "circumstantial evidence" doesn't already take care of?
o Forces fact finder to think about thought process that goes into making inferences from
circumstantial evidence