Monday, October 24, 2005

Fresh Law

The Iowa Supreme Court has two new opinions up.

Connor v. Menard's deals with the legal concept of res ipsa loquitir ("the thing speaks for itself"):
If “there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of the defendant is the most plausible explanation for the injury,” res ipsa loquitur applies.

The example I always used to keep it straight: someone wakes up from surgery with a sponge inside them, or the wrong limb amputated or something. No one can say who left the sponge or chose the wrong limb to amputate, so the Plaintiff can't directly prove negligence. But the nature of the injury itself indicates the negligence, so through the doctrine of Res Ipsa, it can be found despite no actual direct evidence that the negligence occurred.

The concept is hard for defendants because it basically negates the necessity of proving that the defendant was in some way negligent. However, it was created to balance an unfairness to plaintiffs that can be created when there is no direct proof of negligence possible but it's pretty damn obvious it occurred (as in my example). The Iowa courts are fairly tight on when it is properly used:
[T]he doctrine does not apply if the instrumentality of injury is under the sequential, as opposed to the simultaneous, control of more than one defendant. Also, control must be established in the defendant at the time of the negligent act, which is not necessarily the time of injury. Notably, as pertinent to this case, the doctrine does not apply when there is direct evidence as to the precise cause of the injury and all of the facts and circumstances attending the occurrence.

The facts of this case are as follows:
On July 13, 1999, Brandy and her husband, Jody, bought some home insulation from Menard and drove to the rear of the store to load it into their pickup. A . . . Menard employee asked the Conners to put down the tailgate and open up the topper on their pickup so the insulation could be loaded. . . . The plaintiff’s husband, who witnessed the incident, testified that a Menard employee tried to pull insulation from the bottom of the pile. When this did not work, the employee (and possibly two employees) climbed up the side of a divider fifteen- to eighteen-feet tall. The husband testified that a bundle of insulation fell on the plaintiff, and in fact, he believed several fell. At least one employee was at the top of the pile at the time the insulation fell. A Menard employee testified that either he or a coemployee knocked the insulation loose.

The fighting issue is whether the district court should've allowed the plaintiff to put both the res ipsa and general negligence to the jury:
Menard challenged the district court’s instruction on res ipsa on the ground that such an instruction was improper in view of the detailed evidence in the record regarding the specific cause of the accident. The plaintiff responded that this case fits into the category of cases in which both general and specific allegations of negligence may be submitted because the evidence of specific acts of negligence was not so clear as to preclude application of res ipsa. She points to testimony by a Menard employee that leaves some doubt about which of Menard’s employees was responsible for the insulation falling.

The Court noted that the case is rather similar to a textbook res ipsa claim:
The facts of this case are reminiscent of law school and the famous case of Byrne v. Boadle, (1863) 2 H & C 722, 159 Eng. Rep. 299 (Exch.), in which a flour barrel rolled out of an upstairs window and struck the plaintiff. In that case, the court stated:

[H]ere the evidence before the court was[] that the plaintiff and his wife were passing along the Scotland Road, in Liverpool, and when they were [close] against the defendant’s warehouse, the whole of which was in his occupation, used by him as a flour dealer, there came down suddenly upon the man a barrel of flour, and thus the accident occurred to the plaintiff of which he complained. This is one of those cases in which . . . a presumption of negligence by defendant is raised, and it was for him, who had all the means of evidence and knowledge within his reach, to meet it. It having been shown that the defendant had the entire possession and exclusive use of this warehouse, it would be presumed that the accident arose from his want of care, unless he gave some explanation of the cause by which it was produced, which explanation the plaintiff could not be expected to give, not having the same means of knowledge.

However, it distinguished the case based on the evolution of the doctrine under Iowa law:
The court in Byrne applied the res ipsa inference despite the fact it was clear that somebody in the owner’s employ was responsible for the barrel’s falling. This, according to the Byrne court, coupled with the defendant’s control of the premises, was sufficient to establish the inference. We do not propose that result here because it does not matter which of Menard’s employees caused the insulation to fall; it is sufficient that one of its employees was responsible and that the employer would be liable under principles of respondeat superior. Under our general rule, as discussed above, direct evidence of the essential elements of the claim precludes the res ipsa inference.

The plaintiff asked the Court to find that even if res ipsa was inapplicable, including it into the instructions was harmless error:
The plaintiff seeks to avoid the application of this general rule by contending that submitting res ipsa together with direct evidence of the details of the incident is merely harmless error. In other words, if there is enough direct evidence to support the finding of specific negligence, why worry about adding a res ipsa instruction?

The Court was disinclined to do so:
We reject Brandy’s harmless-error argument because, in a case like this, in which evidence of the “precise cause” of the injury is clear enough that a reasonable fact finder could find negligence but might choose not to, the addition of a res ipsa alternative is prejudicial. If the jury, on finding insufficient evidence of specific acts of negligence, were able to fall back on a res ipsa theory, this would in fact give the plaintiff two bites of the apple. In this case, we do not know the basis on which the jury assessed fault. The verdict simply found the plaintiff and defendant “at fault” twenty percent and eighty percent, respectively.

We agree with the court of appeals that the case must be remanded for a new trial.

The other case was an attorney discipline action, suspending his license for a year based on failing to file claims in time to prevent the statute of limitations from running out.

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