Shull v. B.F. Goodrich Co.

• Decision Date: 15 May 1985
• Docket Number: No. 2-1083A386,2-1083A386
• Citation: 477 N.E.2d 924
• Parties: Everett D. SHULL, Sr. and Lapaloma Shull, Appellants (Plaintiffs Below), v. The B.F. GOODRICH COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 924

477 N.E.2d 924

Everett D. SHULL, Sr. and Lapaloma Shull, Appellants (Plaintiffs Below), v. The B.F. GOODRICH COMPANY, Appellee (Defendant Below).

No. 2-1083A386.

Court of Appeals of Indiana Second District.

May 15, 1985.

David J. Avery, Lebamoff Law Offices, Fort Wayne, for appellants.

P. Michael Miller, Miller & Stewart, Fort Wayne, for appellee.

SULLIVAN, Judge.

A jury returned a defendant's verdict in a personal injury and loss of consortium case. Plaintiffs Everett D. Shull, Sr. and Lapaloma Shull, appeal the judgment entered thereon. They present one issue: Whether the trial court erred in refusing an instruction upon the doctrine of res ipsa loquitur.

In 1979 Mr. Shull, age 56, was a truck driver with a motor freight company. He was directed by his employer to the B.F. Goodrich plant in Woodburn, Indiana, to pick up a load of tires. While on Goodrich's loading dock Shull was injured when a dockplate, a mechanical device which forms a bridge between the dock and the truck trailer and upon which Shull was standing, malfunctioned, throwing Shull to the floor of his trailer. The Shulls sued Goodrich for negligence and at trial relied upon both direct proof of Goodrich's alleged negligence and the inference of that negligence under the doctrine of res ipsa loquitur.

At the close of the evidence Shulls tendered and the court refused the following instruction:

"There is a doctrine in law called res ipsa loquitor, [sic] which doctrine may come into effect under certain conditions in a negligence case. In order for the doctrine to apply, you must find that the following facts existed on May 29, 1979, the time of the occurrence in question:

First: That the plaintiff was injured as a proximate result of the occurrence;

Second: That the instrumentality causing the injury was under the exclusive control of B.F. Goodrich;

Third: That the occurrence was of a sort which usually does not occur in the absence of negligence on the part of the person in control.

If you find that the plaintiffs have established each of the three elements as stated by a preponderance of the evidence then you may infer that the defendant, B.F. Goodrich was negligent and you may consider this inference together with all the other evidence in the case in arriving at your verdict." Record at 46.

In determining whether refusal to give a tendered instruction constitutes error, we consider (1) whether the tendered instruction is a correct statement of the law, (2) whether there is evidence in the record to support the giving of the instruction, and (3) whether the substance of the tendered instruction is covered by other instructions which were given. Dahlberg, Administratrix v. Ogle (1978) 268 Ind. 30, 373 N.E.2d 159; Hahn v. Ford Motor Company (1982) 2d Dist., Ind.App., 434 N.E.2d 943, 955, trans. denied.

I.

The words "res ipsa loquitur " literally mean "the thing speaks for itself." BLACK'S LAW DICTIONARY. The doctrine is a rule of evidence allowing an inference of negligence to be drawn under certain factual circumstances. It is premised upon an assumption that in certain instances an occurrence is so unusual that, absent a reasonable justification or explanation, those persons in control of the situation should be held responsible. Carpenter v. Campbell (1971) 149 Ind.App. 189, 271 N.E.2d 163. While the occurrence oftentimes is "unusual" in the sense of being rare or bizarre, that is not a prerequisite to the application of the doctrine. As Dean Prosser has observed:

"There is an element of drama and of the freakish and improbable in a good many of these cases, which has led the courts on occasion to say that the event must be an 'unusual' one; but this is not at all indispensable, and very commonplace events, such as an ordinary movement of a streetcar at the wrong time will be quite enough." W. PROSSER, HANDBOOK OF THE LAW OF TORTS, Sec. 39, p. 215 (4th Ed.1971).

The true question is whether the event was more probably occasioned by negligence of the defendant rather than some other cause. A plaintiff relying upon a res ipsa loquitur may show that the event or occurrence was more probably the result of negligence by simply relying upon the basis of common sense and experience or he may present expert testimony to establish this proposition. Again Dean Prosser:

"In the usual case the basis of past experience from which the conclusion may be drawn that such events usually do not occur without negligence, is one common to the whole community, upon which the jury are simply permitted to rely. Even where such a basis of common knowledge is lacking, however, expert testimony may provide a sufficient foundation; and by the same token it may destroy an inference which would otherwise arise. In many cases the inference to be drawn is a double one, that the accident was caused in a particular manner, and that the defendant's conduct with reference to that cause was negligent.

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"The plaintiff is not required to eliminate with certainty all other possible causes or inferences, which would mean that he must prove a civil case beyond a reasonable doubt. All that is needed is evidence from which reasonable men can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not. It is enough that the court cannot say that the jury could not reasonably come to that conclusion." Prosser, supra at 217-218.

In Indiana the doctrine is invoked where (1) the injuring instrumentality is shown to have been under the exclusive control of the defendant, and (2) the accident is one which in the ordinary course of things does not happen if those who control the instrumentality use proper care. New York, Chicago and St. Louis Railroad Co. v. Henderson (1957) 237 Ind. 456, 146 N.E.2d 531, reh. denied (1958) 237 Ind. 456, 147 N.E.2d 237; Bituminous Fire and Marine Insurance Co. v. Culligan Fyrprotexion, Inc. (1982) 1st Dist., Ind.App., 437 N.E.2d 1360; Hammond v. Scot Lad Foods, Inc. (1982) 1st Dist., Ind.App., 436 N.E.2d 362. ¹

The tendered instruction was derived from the Indiana Pattern Jury Instructions and was a correct statement of the law of res ipsa loquitur in Indiana. Smith v. Insurance Co. of North America (1980) 4th Dist., Ind.App., 411 N.E.2d 638, 639-640, n. 1.

II.

The second test, whether there was evidence to support the giving of the instruction, is in actuality a sufficiency question. Indiana cases dealing with the quantum of evidence necessary for the giving of an instruction indicate that there only need be evidence and reasonable inferences therefrom, which, when viewed in the light most favorable to the proponent, would support a jury verdict on the theory contained in the instruction. See Sims v. Huntington (1979) 271 Ind. 368, 393 N.E.2d 135, 139, (facts giving rise to a "possible conclusion"); Davis v. State (1976) 265 Ind. 476, 355 N.E.2d 836, 839-840, (some evidence that reasonable person could have believed); Phoenix of Hartford Insurance Co. v. League, Inc. (1973) 1st Dist., 155 Ind.App. 342, 293 N.E.2d 58, 61, ("evidence from which a jury could have found"). This standard is deliberately set at a relatively low level in order to assure the right of parties to have the trier of fact determine factual disputes thus preserving the constitutional rights to a trial by jury. IND. CONST. art. I, Sec. 20. ²

Whether the doctrine of res ipsa loquitur applies in any given negligence case is a mixed question of law and fact. See 65A C.J.S. Negligence Sec. 220.22, pgs. 604-605 (1966); 58 AM.JUR.2d Negligence Sec. 521 (1971); RESTATEMENT (SECOND) OF TORTS Sec. 328D comment e (1965). The question of law is whether, under the evidence presented, the doctrine may apply; the factual determination is whether the permissible inference is to be drawn. When faced with a proper res ipsa loquitur instruction the judge's duty is to determine whether the plaintiff has produced evidence from which a jury could reasonably conclude the existence of the underlying elements of exclusive control and probability of negligence. If there is no such evidence the instruction is properly refused. On the other hand, if there is evidence from which a jury could reasonably conclude the existence of the elements, then the conditional res ipsa instruction, which merely tells the jury that if they do find the existence of these elements then they may draw the inference of negligence, must be given. Phoenix of Hartford Insurance Co. v. League, Inc. (1973) 1st Dist., 155 Ind.App. 342, 293 N.E.2d 58.

Our view of the doctrine of res ipsa loquitur may seem strikingly similar to the judicial consideration of the extent of circumstantial evidence which will permit a reasonable trier of fact to infer negligence. In truth and in fact, this is precisely the case. As stated, the doctrine is a rule of evidence. More specifically it is a rule which by reason of probability permits a legitimate inference of a fact (negligence) from the proof of other facts and circumstances. It is clearly therefore a circumstantial evidence rule. New York, Chicago and St. Louis Railroad Co. v. Henderson, supra, 146 N.E.2d 531.

The precise issue thus becomes whether the Shulls presented evidence from which a reasonable jury could conclude that the dock-plate would not have malfunctioned in the absence of negligence on the part of the party in control and that Goodrich was the party in exclusive control. If so, then the Shulls were entitled to have the jurors instructed that if they did find those elements established by a preponderance of the evidence, they could infer that Goodrich was negligent.

A. PROBABILITY OF NEGLIGENCE

When Shull arrived at Goodrich's plant he was directed to dock # 7, one of Goodrich's eighteen loading docks. Each dock is equipped with a dock-plate. The dock-plate is a mechanical device consisting of a metal plate with a sixteen to eighteen inch metal lip, both operated by a...