Friday, January 27, 2017

The inapplicability of res ipsa loquitur.

In affirming the granting of defendants' summary judgment motion in this action involving defendant-store's escalator, the Appellate Division found that the doctrine of res ipsa loquitur, which would permit a fact finder to infer negligence based upon the sheer happening of the event, is inapplicable. Plaintiff claims that the escalator skidded and shook causing her to fall forward. The evidence in this record establishes that the elevator never operated in this manner either before or after the alleged accident. Plaintiff was able, after the fall, to ride the escalator up to the next level without any further escalator malfunction. Without more, this proof is insufficient to establish that the event is of a kind that ordinarily does not happen in the absence of negligence.  Res ipsa loquitur is also unavailable because there is evidence that plaintiff fell after misstepping on the escalator, creating the possibility that plaintiff could have contributed to her own injury. In any event, the doctrine may not be applied against defendant-store, which ceded all responsibility for the daily operation, repair, and maintenance of the escalator to defedant-elevator company via a full-service contract.

Case:  Torres-Martinez v. Macy's Inc., NY Slip Op 00429 (1st Dep't January 24, 2017)

Here is the decision.

Monday's issue:  The doctrine of collateral estoppel.