77 Hawai'i 269, Carlos v. MTL, Inc.

• Decision Date: 31 October 1994
• Docket Number: No. 15691,15691
• Citation: 883 P.2d 691
• Parties: 77 Hawai'i 269 Encarnacion CARLOS and Melchor Carlos, Plaintiffs-Appellants, v. MTL, INC., a Hawai'i corporation, Daniel Nartatez, Defendants-Appellees, and John and Mary Does 1-10, and Doe Partnerships, Corporations or Other Entities, Defendants.
• Court: Hawaii Court of Appeals

Page 691

883 P.2d 691

77 Hawai'i 269

Encarnacion CARLOS and Melchor Carlos, Plaintiffs-Appellants, v. MTL, INC., a Hawai'i corporation, Daniel Nartatez Defendants-Appellees and John and Mary Does 1-10, and Doe Partnerships, Corporations or Other Entities, Defendants.

No. 15691.

Intermediate Court of Appeals of Hawai'i.

Oct. 31, 1994.

Erlinda Dominguez (Thomas J. Kaster and Thomas E. Walsh, Law Offices of Erlinda Dominguez, with her on the briefs), Honolulu, for plaintiffs-appellants.

Randolph R. Slaton, on the brief, Honolulu, for defendants-appellees.

Syllabus by the Court

Plaintiffs sued a bus company and its driver for injuries allegedly sustained when one of the plaintiffs fell from a city bus. The trial court, after a non-jury trial, found in favor of Defendants, and Plaintiffs appealed.

Held: Affirmed.

1. A common carrier is required to exercise the highest degree of care and prudence for the safety of its passengers, as well as the utmost human skill and foresight. It also has a duty to discharge its passengers safely and to afford them sufficient time and opportunity in which to alight. It may even be under an obligation, in certain circumstances, to warn that a door will be closed. However, a common carrier is not an insurer of the safety of its passengers, and it has no duty to avoid all dangers which could not reasonably be foreseen.

2. Negligence must be proved and never will be presumed. The mere fact that an accident or injury has occurred, with nothing 3. One type of circumstantial evidence that is used to infer a defendant's negligence is referred to as "res ipsa loquitur," a Latin phrase meaning "the thing speaks for itself."

[77 Hawai'i 273] more, is not evidence of negligence on the part of anyone. To prevail in a negligence action, a plaintiff must adduce sufficient evidence from which reasonable persons might conclude, upon the whole, that it is more likely than not that the plaintiff's injury or accident was caused by the defendant's negligence. Such evidence may be direct or circumstantial.

4. Hawai'i is in line with the majority of American jurisdictions which treat the doctrine of res ipsa loquitur as purely a procedural or evidentiary rule, rather than a substantive rule.

5. The doctrine of res ipsa loquitur provides that whenever a thing that produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of the injury itself will be deemed to afford sufficient evidence to support a recovery, in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. Under the res ipsa loquitur theory, then, the fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer or that it is necessary to offer, without further proof of the defendant's duty and of his negligence to perform it.

6. A res ipsa loquitur case differs from a specific negligence case. In a res ipsa case, the ultimate fact, some kind of negligence, is inferred without any evidential facts except the existence of an unusual occurrence of a character which ordinarily results only from negligence. In a specific negligence case, there must be evidential facts sufficient to show some negligent acts or omissions which were the proximate cause of the occurrence.

7. In order to invoke the doctrine of res ipsa loquitur, a plaintiff must first establish the presence of three conditions or elements: (1) the event must be one 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; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

8. The first element for application of the res ipsa loquitur doctrine, that the event does not ordinarily occur in the absence of negligence, is another way of stating an obvious principle of circumstantial evidence: that the event must be such that, in the light of ordinary experience, gives rise to an inference that someone must have been negligent. This element is met if, in the abstract, the event at issue is one that gives rise to the reasonable probability that in the ordinary course of events the incident would not have occurred without negligence. In other words, a plaintiff must show that the event is of a type that normally does not occur unless someone is negligent.

Thus, where an accident occurs that in the normal course could have happened without negligence on someone's part, the first element is not met. Similarly, where there are two equally probable and efficient causes of the accident shown either by the pleadings or by the evidence, or where two equally plausible inferences can be drawn as to the likelihood of negligence being or not being the cause of plaintiff's injury, the doctrine of res ipsa loquitur is not applicable.

9. The second, "exclusive control" element for invocation of the res ipsa loquitur doctrine, derives from the necessity to "bring home" to the defendant the negligence that is "in the air." The purpose of this requirement is to link the defendant with the probability, already established, that the accident was negligently caused. Even if an accident and its attendant circumstances "cry out loudly of someone's negligence," the res ipsa loquitur doctrine will not apply unless the plaintiff produces evidence connecting the defendant as the negligent party.

The burden is on the plaintiff, therefore, to trace the injury received to a cause or specific instrumentality for which the defendant was responsible, or to show that the defendant was responsible for all reasonable 10. The third element for invoking the doctrine of res ipsa loquitur, that the plaintiff did not contribute to the accident in question, is allied to the second element of exclusive control in the defendant. Its purpose is to eliminate the possibility that it was the plaintiff who was responsible for the accident, and to aid the factfinder in determining whether it is more probable than not that the defendant was responsible for the occurrence. If it reasonably appears that the accident might have been caused by the plaintiff's own conduct, the doctrine of res ipsa loquitur would not be applicable to infer the defendant's negligence.

[77 Hawai'i 274] probable causes to which the accident could be attributed. Whether the plaintiff has sustained this burden is a question of fact, unless the evidence is uncontradicted and does not permit varying inferences.

11. The doctrine of res ipsa loquitur is not applicable in a tort action brought by a passenger against a common carrier, where the act or thing which was the proximate cause of the passenger's injuries was to be expected in the normal operation of the carrier's transportation facilities, or where it appeared that the cause of the injuries was plainly outside the control of the carrier and had no connection with its conveyances or the acts of its employees, or where it appeared that the cause of the injuries was as well known to the passenger as to the carrier, or where the evidence clearly showed a definite cause of the injuries.

12. As a matter of common knowledge and experience, it is inherent in the act of descending steps, whether bus, basement, residential, or commercial, that there will be occasional falls not attributable to the negligence of anyone. Where a passenger falls down and is injured, while boarding or alighting from a carrier which is stationary, it cannot be said that negligence is a more probable explanation than any other. Common experience shows that people are likely to fall while boarding or alighting from streetcars, buses, and other types of transportation without negligence on the part of anyone. Such accidents do ordinarily occur without the fault of others. Such accidents happen every day. The probability of negligence is absent and the doctrine of res ipsa loquitur is not applicable in such situations.

13. When the doctrine of res ipsa loquitur is applicable, its effect is merely to raise a rebuttable inference which allows a plaintiff to get his case to the jury and thus avoid a directed verdict in the defendant's favor. The job of weighing the inference of negligence against the defendant's evidence then becomes a matter for the jury. As long as a case is one in which there is a choice to be made between conflicting inferences as to which reasonable men may differ, the factfinder is permitted, but not compelled, to infer negligence. The invocation of the doctrine thus does not establish a presumption of negligence or shift the burden of proof.

Before BURNS, C.J., and HEEN and WATANABE, JJ.

WATANABE, Judge.

Encarnacion Carlos (Encarnacion) and her husband, Melchor Carlos (Melchor), (collectively, Plaintiffs) appeal from a judgment absolving MTL, Inc. (MTL) and Daniel Nartatez (Daniel) (collectively, Defendants) of liability for injuries sustained by Encarnacion when she fell from a bus owned by MTL and driven by Daniel.

Challenging seven conclusions of law entered by the trial court, Plaintiffs argue that the trial court committed error in three respects: first, the trial court wrongly concluded that Defendants did not breach any duty owed to Encarnacion; second, the trial court improperly failed to apply the doctrine of res ipsa loquitur to presume Defendants' negligence; and third, the trial court incorrectly concluded that Encarnacion's contributory negligence barred any recovery by Plaintiffs.

We affirm.

BACKGROUND

On April 11, 1988, Encarnacion was a passenger on an MTL bus headed for Kalihi and driven by Daniel, an MTL employee for seventeen years. Encarnacion planned to get off the bus at 'Umi Street, the last stop (terminus) on the...