Morejon v. Rais Const. Co.

• Decision Date: 09 May 2006
• Citation: 7 N.Y.3d 203,851 N.E.2d 1143
• Parties: Maria MOREJON, as Administratrix of the Estate of Fabio Pardo, Deceased, Appellant, v. RAIS CONSTRUCTION COMPANY et al., Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

851 N.E.2d 1143

7 N.Y.3d 203

Maria MOREJON, as Administratrix of the Estate of Fabio Pardo, Deceased, Appellant, v. RAIS CONSTRUCTION COMPANY et al., Respondents, et al., Defendants.

Court of Appeals of New York.

May 9, 2006.

Philip J. Hoffman, New York City, and Zuller & Bondy, LLP (Thomas L. Bondy of counsel), for appellant.

Faust Goetz Schenker & Blee LLP, New York City (Erika C. Aljens of counsel), for respondents.

Fiedelman & McGaw, Jericho (Andrew Zajac, Dawn C. DeSimone, Rona L. Platt and Brendan T. Fitzpatrick of counsel), for Defense Association of New York, Inc., amicus curiae.

OPINION OF THE COURT

ROSENBLATT, J.

In a personal injury or property damage case, it is plaintiff's burden to prove defendant negligent. Occasionally, however, a plaintiff to whom the defendant owes a duty of care is not in a position to prove directly what actually happened or that a specific act of the defendant was negligent. In a proper case, under the doctrine of res ipsa loquitur, the law allows a jury to consider the circumstantial evidence and infer that the defendant was negligent in some unspecified way. (See generally Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997].)¹

On this appeal, we address defendants' assertion—supported by the Appellate Division—that circumstantial evidence (res ipsa) may never justify summary judgment for the plaintiff. We conclude that, while there is no rule or policy absolutely foreclosing that possibility, it should be a rare event. Here, open questions of fact remain.

I.

Plaintiff, on behalf of the estate of Fabio Pardo, sued defendant Rais Construction Company, alleging that Pardo was fatally injured while delivering building materials to Rais Construction for a job it was doing at the residence owned by Barry and Susan Kleinman in Nassau County.²

At their depositions, Alejandro and Maria Pardo (Fabio's brother and sister-in-law) testified that Rais had engaged Fabio to pick up boxes from a hardware store and deliver them to the Kleinman house the morning of December 26, 1998, a Saturday. They claimed that they accompanied Fabio to the site, where a roll of roofing material fell from the roof and hit him on the head. They testified that a man at the house opened the door but neither Maria nor Alejandro could identify him, nor did they tell him that there had been an accident. Further, Maria acknowledged that Fabio did not seek any medical treatment for the injury until the end of February 1999. In his deposition, Cesar Rais testified that he never left roofing materials on the Kleinmans' roof, implying that none were there on December 26. Rais also testified that his crew stopped work at the site three days before the incident. Barry Kleinman supported Rais's assertions.

Rais further stated that he did not engage Fabio to do any work on the day in question or even during the previous several weeks, having let him go weeks before out of concern that Fabio's extreme headaches were posing a safety problem for Fabio and others. Rais added that it was not until April of 1999 that he was told about the alleged accident. Barry Kleinman testified that he was at the house the afternoon of December 26, 1998 and saw no evidence of work being done. He said it had snowed the day before and there were no tracks or disturbances in the fresh snow.

In resisting plaintiff's motion for summary judgment, defendants argued that there were disputed questions of fact, including whether the accident had even occurred. Supreme Court initially denied the motion but on reargument granted plaintiff summary judgment against the Rais defendants on the basis of res ipsa loquitur. The Appellate Division reversed, stating that res ipsa loquitur "may not be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability" (18 A.D.3d 632, 633, 795 N.Y.S.2d 654 [2d Dept.2005]). Because there are questions of fact precluding summary judgment for the plaintiff, we affirm. We disagree, however, with the Appellate Division's statement that res ipsa loquitur may never serve as a basis for granting a plaintiff summary judgment.

II.

In addressing the procedural role of res ipsa loquitur, it is useful to examine the development of the doctrine itself. This Court used the term "res ipsa loquitur" for the first time in Mullen v. St. John, 57 N.Y. 567, 570 [1874], in which a part of a building fell on the plaintiff. "Buildings properly constructed do not fall without adequate cause," we said. (Id. at 569.)

"If there be no tempest prevailing or no external violence of any kind, the fair presumption is, that the fall occurred through adequate causes, such as the ruinous condition of the building, which could scarcely have escaped the observation of the owner. The mind is thus led to a presumption of negligence on his part, which may, of course, be rebutted. In the absence of explanatory evidence, negligence may be presumed." (57 N.Y. at 569-570.)³

Citing an English case (Kearney v London, Brighton, & S. Coast Ry. Co., 1869-1870 LR [5 QB] 411 [1870]), the Court expressly espoused the doctrine of res ipsa loquitur,⁴ and upheld the judgment for plaintiff based on the jury's verdict. After Mullen, and for about 30 years, the Court heard a number of res ipsa loquitur cases and was almost uniformly inhospitable to the plaintiffs or the doctrine.⁵ Slowly thereafter, res ipsa loquitur gained general acceptance with us,⁶ but there was some confusion over the doctrine's procedural effects. Courts, including ours, used "prima facie case," "presumption of negligence" and "inference of negligence" interchangeably even though the phrases can carry different procedural consequences. One case went so far as to use all three interchangeably.⁷

In Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455 [1941], a pivotal case, we reversed the grant of a directed verdict for the plaintiff. The Court emphasized that when dealing with res ipsa loquitur, the indiscriminate use of the terms "presumption" and "inference" caused procedural problems. The Court held that res ipsa loquitur does not create a presumption of negligence against the defendant. Rather, the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent. The Court went on to state that res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is unrefuted.

We stand by those principles, and in the context of this appeal, reaffirm that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable.

Drawing on a number of cases that had fashioned the criteria for res ipsa loquitur, and relying on Prosser, the Court listed these criteria in Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 280 N.Y.S.2d 385, 227 N.E.2d 304 [1967]:

"(1) the event 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 have been due to any voluntary action or contribution on the part of the plaintiff." (19 N.Y.2d at 430, 280 N.Y.S.2d 385, 227 N.E.2d 304, quoting Prosser, Torts § 39, at 218 [3d ed.].)

Our more recent decisions have generally followed this formulation (see e.g. States v. Lourdes Hosp., 100 N.Y.2d 208, 762 N.Y.S.2d 1, 792 N.E.2d 151 [2003]; Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997]), and the case at hand gives us no reason to change it. We have not, however, discussed the summary judgment or directed verdict aspects of the doctrine in the 65 years since Foltis. Over the last century, the Appellate Division has held barely more than a dozen times that a plaintiff is entitled to summary judgment or a directed verdict in res ipsa loquitur cases.⁸ An approach that sparing is consistent with Foltis, and in accord with the treatise commentators.⁹

Since Foltis, our courts have grown more sensitive to the differences between inferences and presumptions, recognizing that terminology can carry varying procedural implications.¹⁰ But the line is sometimes blurry, and on occasion, courts have still referred to res ipsa loquitur as creating a presumption, as opposed to an inference, of negligence.¹¹ Indeed, Wigmore has characterized res ipsa loquitur as raising a presumption of negligence, as have a number of courts in other jurisdictions.¹² The difficulty in applying a presumption or an inference has generated some criticism in an analogous setting (see Allen, Presumptions, Inferences and Burden of Proof in Federal Civil Actions—An Anatomy of Unnecessary Ambiguity and a Proposal for Reform, 76 Nw U. L. Rev. 892 [1982]) and one author has listed eight ways in which courts have used the term "presumption."¹³

In our own taxonomy in other contexts, we speak of "presumption[s] of law" (Matter of Buccini v. Paterno Constr. Co., 253 N.Y. 256, 259, 170 N.E. 910 [1930]), "presumption[s] of fact" (Myers v. Bartholomew, 91 N.Y.2d 630, 636, 674 N.Y.S.2d 259, 697 N.E.2d 160 [1998]), "conclusive presumption[s]" (Cornell Univ. v. Bagnardi, 68 N.Y.2d 583, 594, 595, 510 N.Y.S.2d 861, 503 N.E.2d 509 [1986]), "rebuttable presumption[s]" (Williams v. City of New York, 2 N.Y.3d 352, 366, 779 N.Y.S.2d 449, 811 N.E.2d 1103 [2004]), "conflicting presumptions" (Palmer v. Palmer, 162 N.Y. 130, 133, 56 N.E. 501 [1900]) and "statutory presumption[s]" (DeJesus v. DeJesus, 90 N.Y.2d 643, 652, 665 N.Y.S.2d 36, 687 N.E.2d 1319 [1997]). Perhaps even more unsettling, we also hear of "mandatory inference[s]" (West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 [5th Cir. 2003]), ...