Case Notes: Looking at Res Ipsa Loquitur and Breach of Duty in the context of a one-car collision – Gilbert v. U-Haul (COA NPO 1/9/2015)

Photo is for blogging purposes and is NOT a photo involving this collision.  Photo from Depositphotos.com.

Photo is for blogging purposes and is NOT a photo involving this collision. Photo from Depositphotos.com.

It would be so much easier to prevail in personal injury cases if we did not have to worry about evidence to show duty and breach.  Negligence is usually not that difficult.  Oftentimes, we think that res ipsa loquitur may prove to be our salvation.  Bleachers just don’t fall unless someone did something wrong,  or a scalpel is left in following surgery.

Res ipsa Loquitur and breach of duty take center stage in this nonpublished decision from the Scott Circuit Court – Peggy Gilbert vs. U-Haul International Inc., Judd Road Storage and U-Haul and Thomas Gilbert, COA, NPO, 1/9/2015 which affirmed the trial court Judge Robert Johnson’s granting of summary judgment dismissing her claims against her husband.

This case will show that res ipsa loquitur (aka res ipsa) is not an easy solution for problems of proof of negligence (duty and breach).

A little background on how this case ended up with a dismissal of the wife’s claims against her husband.  Well, it was a single vehicle collision, with husband driving a truck with a U-Haul attached.  After filing suit, Peggy’s claims against the two U-Haul defendants settled, leaving the claim against Tom Gilbert, Peggy’s husband.

The hurdle was that Peggy had previously testified  in her deposition that she did not observe Tom driving incorrectly or inappropriately.  Now, she is trying to collect some money from her husband, or should I say, her husband’s liability insurance policy, but unable to offer her own evidence or observations on negligence what is she going to do?

The trial court gave her four months to obtain additional evidence, and the only thing she had was an affidavit from an accident reconstructionist that after reviewing the records who opined that the only way this accident could have been caused by was by error on the part of Tom, U-Haul, or both.

I present this case as a case note to demonstrate the issues that develop when you have a claim against your spouse and can’t give any evidence that your spouse was negligent other than res ipsa loquitur, aka “the think speaks for itself”.  We often bandy about the doctrine in a short-hand manner thinking its common sense approach will fill in the blanks.  However, it’s not that easy as this case details.  Briefly, it is a doctrine that states that the elements of duty of care and breach can sometimes be inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.

For more detailed analysis, then “continue reading” below.

Recovery for negligence requires establishment of the elements of duty, breach of duty, causation, and damages. See, e.g., Lewis v. B & R Corp., 56 S.W.3d 432, 436–37 (Ky. App. 2001). Peggy argues that a genuine issue of material fact exists simply because Tom was unable to control the vehicle. But Tom’s failure to maintain control of the vehicle, when taken alone, is not enough to show negligence absent the application of res ipsa loquitur. The doctrine of res ipsa loquitur “recognizes that as a matter of common knowledge and experience the very nature of an occurrence may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury.” Bell & Koch, Inc. v. Stanley, 375 S.W.2d 696, 697 (Ky. 1964).

The case of Cox v. Wilson, 267 S.W.2d 83, 84 (Ky. 1954), describes the elements of res ipsa loquitur as follows:

(1) The defendant must have had full management and control of the instrumentality which caused the injury. (2) The circumstances must be such that, according to common knowledge and the experience of mankind, the accident could not have happened if those having control and management had not been negligent. (3) The plaintiff’s injury must have resulted from the accident.

Here, the first and third elements were clearly shown by the depositions of Peggy and Tom. The focus of our analysis centers on the second element. The court in Cox, which similarly discussed the second element of this doctrine, explains:

The fact that some mystery accompanies an accident does not justify the application of the doctrine of res ipsa loquitur. The fact that we cannot pinpoint an act of omission or commission wherein one fails to respect the rights of others does not summon its use. A lack of knowledge as to the cause of the accident does not call for the application of the doctrine. The separate circumstances of each case must be considered and from them it must be first decided whether according to common knowledge and experience of mankind, this accident could not have happened if there had not been negligence.

Id.

Res ipsa did not offer a reprieve in this case – not only had Peggy seen no evidence of negligence on Tom but other evidence presented showed the accident could have happened had Tom NOT been negligent; plus new tires , inspected the brakes, regular checks of the towing assembly, let Peggy check it out and drive, and per Tom’s deposition testimony, he was experienced in towing.

As concluded by the Court –

[T]o recover for negligence, Peggy must establish the elements of duty, breach of duty, causation, and damages. None of the evidence she submitted established the existence of duty, breach, or causation here. As there was no justification for an inference that Tom was negligent, and the affidavit provided no additional facts, there was no genuine issue of material fact. Tom was entitled to a judgment as a matter of law, and the trial court did not err in granting summary judgment.

The order of the trial court is affirmed.

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