Thompson v. Burke Engineering Sales Co.

• Citation: 84 A.L.R.2d 689,252 Iowa 146,106 N.W.2d 351
• Decision Date: 15 November 1960
• Docket Number: No. 49779,49779
• Parties: , 84 A.L.R.2d 689 Arlean THOMPSON, Appellant, v. BURKE ENGINEERING SALES CO., a Corporation, Appellee.
• Court: United States State Supreme Court of Iowa

Page 351

106 N.W.2d 351

252 Iowa 146, 84 A.L.R.2d 689

Arlean THOMPSON, Appellant, v. BURKE ENGINEERING SALES CO., a Corporation, Appellee.

No. 49779.

Supreme Court of Iowa.

Nov. 15, 1960.

Brown & Nordenson, Sioux City, for appellant.

Sifford & Wadden, Sioux City, for appellee.

GARFIELD, Justice.

We granted plaintiff this appeal under rule 332, Rules of Civil Procedure, 58 I.C.A., from an interlocutory ruling of the trial court sustaining defendant's motion to dismiss Count I of plaintiff's petition in a law action to recover for personal injuries alleged to have been caused by defendant's negligence. The dismissed count states plaintiff relies on the doctrine of res ipsa loquitur. Defendant's motion asserts the doctrine is not applicable under the facts alleged, specifically because defendant was not in exclusive control of the instrumentality that caused the injury.

Plaintiff alleges that on March 1, 1957, she was employed by The Normandy Restaurant in Sioux City when a large piece of metal ceiling in the kitchen, with plaster and debris, fell and struck her, causing the injuries complained of; in January, 1956, defendant installed the ceiling and had exclusive control thereof until it was turned over to plaintiff's employer as completed for its use and that of its employees and the public; neither plaintiff nor her employer nor any other person did anything to cause the occurrence which arose solely from the condition of the ceiling as installed by defendant; neither plaintiff nor her employer knew what caused the ceiling to fall nor had access to the evidence thereof and such evidence is exclusively within defendant's knowledge; no one had access to the ceiling from above or disturbed it from below after its installation by defendant; it was fully protected from all the elements of nature; there was no intervening cause of the occurrence and its sole cause was defendant's negligence in constructing the ceiling.

I. Defendant's motion to dismiss admits all well-pleaded facts in the petition for the purpose of testing their legal sufficiency. Herbst v. Treinen, 249 Iowa 695, 699, 88 N.W.2d 820, 823 and citations; Hawkeye-Security Ins. Co. v. Lowe Construction Co., 251 Iowa 27, 99 N.W.2d 421, 424.

II. Under the doctrine of res ipsa loquitur, where 1) injury is caused by an instrumentality under the exclusive control of defendant and 2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits but does not compel an inference that defendant was negligent. Eaves v. City of Ottumwa, 240 Iowa 956, 969, 38 N.W.2d 761, 769, 11 A.L.R.2d 1164, 1176, and citations; Young v. Marlas, 243 Iowa 367, 371, 51 N.W.2d 443, 445; Schneider v. Keokuk Gas Service Co., 250 Iowa 37, 41, 92 N.W.2d 439, 441; Article by Harry B. Slife in 35 Iowa Law Review 393.

III. In considering the applicability of res ipsa loquitur the question whether the occurrence is such as would not happen if reasonable care had been used rests on common experience and not on evidence in the particular case that tends to show the occurrence was or was not the result of negligence. Eaves and Schneider cases, supra; Shinofield v. Curtis, 245 Iowa 1352, 1360-1361, 66 N.W.2d 465, 470, 50 A.L.R.2d 964, 972.

We think dismissal of Count I of plaintiff's petition may not be upheld on the ground the alleged occurrence was such that, based on common experience, it would have happened if reasonable care had been used. Traditionally the rule of res ipsa loquitur has frequently been applied in cases of injuries from falling objects. A number of decisions throughout the country apply the doctrine to the fall of plaster from a ceiling. Dittiger v. Isal Realty Corp., 290 N.Y. 492, 49 N.E.2d 980, and citations; Windas v. Galston & Sutton Theatres, 35 Cal.App.2d 533, 96 P.2d 170, 171; McCleod v. Nel-Co Corp., 350 Ill.App. 216, 112 N.E.2d 501; Manson v. May Dept. Stores Co., 230 Mo.App. 678, 71 S.W.2d 1081, 1082.

As stated in Windas v. Galston & Sutton Theatres, supra [35 Cal.App.2d 533, 96 P.2d 171], 'Plaster does not ordinarily fall from a ceiling if proper care has been used to see that the ceiling is safe.' It would seem the fall of 'a large piece of metal ceiling' might be found to be more unusual than the fall of plaster.

Defendant suggests and the trial court's opinion states the part of the ceiling which fell could reasonable have become loose or jarred free by steam and moisture from cooking in the kitchen, vibrations from within or without the building, leakage of water or any number of other causes. A ready answer is that the dismissed count alleges, and defendant's motion admits for present purposes, there was no such cause.

IV. In most of the many cases that apply the res ipsa doctrine, the instrumentality which causes the injury is under defendant's exclusive control at the time the injury occurs. However, there is a growing number of decisions which apply the rule where defendant was in exclusive control of the instrumentality at the time of the alleged negligent act, although not at the time of the injury, provided plaintiff first proves there was no change in the condition of the instrumentality after it left defendant's control which could reasonably have caused the injury. See 65 C.J.S. Negligence § 220(8), pp. 1017-1018. Of course this assumes existence of the second foundation fact, stated in Division II hereof, that the occurrence is one which would not ordinarily happen if reasonable care had been used.

Perhaps most numerous of the precedents last referred to are those where a bottler of beverages has been held liable for injuries from the explosion of a bottle after it left defendant's control provided intervening causes are eliminated. Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, 438-439; Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 203 P.2d 522; Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762, 73 S.E. 1087; Nichols v. Nold, 174 Kan. 613, 258, P.2d 317, 38 A.L.R.2d 887; Stolle v. Anheuser-Busch, Inc., 307 Mo. 520, 271 S.W. 497, 39 A.L.R. 1001; Loch v. Confair, 372 Pa. 212, 93 A.2d 451, 453; 65 C.J.S. Negligence § 220(12), p. 1039.

Nichols v. Nold, supra, states [174 Kan. 613, 258 P.2d 323]: 'The real test is whether defendants were in control at the time of the negligent act or omission which either at that time or later produced the accident.'

Stolle v. Anheuser-Busch, Inc., supra, holds it was error to sustain a demurrer to a petition quite similar in principle to the dismissed count here.

There are also many precedents which apply the res ipsa rule, under the same proviso, to injuries from the presence of broken glass or other foreign substance in a bottle of beverage. Crystal Coca-Cola Bottling Co. v. Cathey, 83 Ariz. 163, 317 P.2d 1094, 1098-1099; Rost v. Kee & Chapell Dairy Co., 216 Ill.App. 497; Mayerhefer v. Louisiana Coca-Cola Bottling Co., 219 La. 320, 52 So.2d 866; Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866, 871; Underhill v. Anciaux, 68 Nev. 69, 226 P.2d 794, 796-797; Tafoya v. Las Cruces Coca-Cola Bottling Co., 59 N.M. 43, 278 P.2d 575, 578-579.

Other decisions apply the res ipsa doctrine under varying facts where defendant was not in control of the instrumentality causing the injury at the time thereof, provided plaintiff proves no change in condition of the instrumentality after it left defendant's control caused the injury. Hercules Powder Co. v. Automatic Sprinkler Corp., 151 Cal.App.2d 387, 311 P.2d 907 (explosion allegedly caused by malfunctioning of sprinkler system installed by defendant at least 19 months previously and checked by it about every six months, the last time 30 days before the fire); Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704, 3 A.L.R.2d 1437, 1444 (plaintiff's house burned by failure of furnace installed by defendant to function properly); Saunders v. Walker, 229 La. 426, 86 So.2d 89, 93 (plaintiff's residence damaged by water caused by slipping of a rubber hose in an air conditioning system installed by defendant in the attic); Peterson v. Minnesota Power & Light Co., 207 Minn. 387, 291 N.W. 705, 707 (plaintiff burned by flash of electricity from electric stove installed by defendant); Rafferty v. Northern Utilities Co., 73 Wyo. 287, 278 P.2d 605 (fire allegedly caused by defendant's negligently cleaning and reinstalling a gas heater). The Plunkett case states it is similar in principle to the exploding bottle cases previously referred to.

Weidert v. Monahan Post Legionnaire Club, 243 Iowa 643, 649, 51 N.W.2d 400, 403, applies the res ipsa rule in favor of a tenant-storekeeper whose property on the first floor of a building was damaged by water from a heater on the third floor occupied by defendant club. The club was permitted to recover over, also under the res ipsa doctrine, against a plumber whose employees had repaired the heater.

The Weidert opinion quotes at length from Peterson v. Minnesota Power & Light Co., supra, including this statement therein from 3 Cooley, Torts, 4th Ed., section 480, page 386: 'Control 'is not necessarily a control exercised at the time of the injury, but may be one exercised at the time of the negligent act which subsequently resulted in an injury'.' Waylander-Peterson Co. v Great Northern R. Co., 8 Cir., 201 F.2d 408, 413, 37 A.L.R.2d 1399, 1407, also quotes this with apparent approval.

Weidert v. Monahan Post Legionnaire Club, supra, does not hold plaintiff could not recover from the plumber under the res ipsa doctrine. Plaintiff did not sue the plumber, so there was no occasion to consider that question.

Defendant's argument here comes close to conceding plaintiff could invoke the res ipsa doctrine against her employer and it in turn could invoke the doctrine against defendant. If this be true there is no sound reason why plaintiff may not invoke the doctrine against defendant upon the...