Walker v. Parish Chemical Co.

Decision Date04 April 1996
Docket NumberNo. 950485-CA,950485-CA
Citation914 P.2d 1157
PartiesSonji WALKER, Plaintiff and Appellant, v. PARISH CHEMICAL COMPANY, Defendant and Appellee.
CourtUtah Court of Appeals

Jeffery C. Peatross, R. Phil Ivie, and David N. Mortensen, Ivie & Young, Provo, for Appellant.

Eric P. Lee and Duane R. Smith, Dart, Adamson & Donovan, Salt Lake City, for Appellee.



Sonji Walker appeals the trial court's entry of a judgment notwithstanding the verdict (j.n.o.v.) on her negligence claim after a jury verdict in her favor. Specifically, Walker claims she was entitled to the res ipsa loquitur instruction that the trial court ruled had been given improperly. We affirm.


On appeal from a j.n.o.v., we view the evidence and all reasonable inferences arising therefrom in a light most favorable to the party who prevailed at trial, and we recite the facts accordingly. Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1061-62 (Utah 1996); Heslop v. Bank of Utah, 839 P.2d 828, 830 (Utah 1992); King v. Fereday, 739 P.2d 618, 620 (Utah 1987).

On July 24, 1992, a fire broke out on the premises of Parish Chemical Company (Parish Chemical) in Utah County. As a result of the fire, officials evacuated a large area near Parish Chemical. Officials also rerouted traffic from Interstate 15 through Orem, Utah. Firefighters did not extinguish the fire but let it burn out because the smoke was toxic. Utah Valley Regional Medical Center established an emergency treatment area outside the hospital on the afternoon of the fire. Several patients complained of burning eyes, itching throats, coughing, and shortness of breath.

On the day of the fire, Walker was working at a convenience store at 1200 West and Center Street in Orem, Utah. Walker noticed the police and firefighters in the area, but she was not aware of any fumes or smoke. When she left work, Walker had a scratchy throat and felt dizzy. As she drove, Walker's dizziness increased and her vision blurred. Walker stopped at a friend's house and called her husband. Walker's husband picked her up and took her to the hospital's triage unit. Doctors diagnosed Walker with Reactive Airways Dysfunction Syndrome. Walker lost her voice for over a month, could walk only very slowly, and experienced headaches.

Walker filed the instant suit against Parish Chemical, alleging her injuries were the result of the company's negligence. At trial, Walker proceeded on a res ipsa loquitur theory. In other words, Walker could not point to a specific act of negligence that Parish Chemical committed; however, Walker hoped to establish the accident was the kind that would not occur absent negligence. Three witnesses testified about the fire. Those three witnesses agreed on the area of the building in which the fire started, but they only speculated about the origin or cause of the fire. Parish Chemical moved for a directed verdict, but the trial court allowed the case to go to the jury and gave the following instruction on the doctrine of res ipsa loquitur:

Ordinarily, the plaintiff must prove negligence and proximate cause by a preponderance of the evidence. However, under certain circumstances, one who suffers injuries may hold another responsible without direct proof of negligence. You may draw an inference of negligence and proximate cause if you find that the accident or injury occurred under the following conditions:

1. The accident was of a kind which, in the ordinary course of events, would not have happened had the defendant used due care;

2. The accident or injury was caused by a force that was controlled only by the defendant, or if you cannot specifically identify the force, that the defendant was responsible for all likely causes of the accident or injury; and,

3. The plaintiff's actions were not the primary cause of the accident or injury.

If you find that all of those conditions exist, then you may conclude that the defendant was negligent and that the defendant's negligence was a proximate cause of the plaintiff's accident or injury. However, you are not required to reach that conclusion. You should weigh all of the evidence in the case and decide whether a finding of negligence is warranted. 1

The jury returned a verdict for Walker, finding Parish Chemical negligent. After the verdict, Parish Chemical moved the trial court for a j.n.o.v. See Utah R.Civ.P. 50(b). Parish Chemical argued Walker had failed to establish the necessary foundation for the res ipsa instruction, contending Walker had not shown the fire was more probably than not the result of Parish Chemical's negligence.

The trial court ruled Parish Chemical was entitled to judgment as a matter of law because Walker had not adduced sufficient evidence that the fire was more probably than not caused by Parish Chemical's negligence. Thus, Walker had failed to establish the necessary foundation for the res ipsa loquitur instruction. The trial court accordingly granted Parish Chemical's motion for a j.n.o.v. Walker now appeals.


Walker's appeal presents a narrow issue for our review: whether Walker adduced sufficient evidence to establish the fire was more probably than not the result of Parish Chemical's negligence and thus whether Walker was entitled to the jury instruction on res ipsa loquitur. We review the grant of a j.n.o.v. for correctness, affording no deference to the trial court. Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991). Trial courts may grant a j.n.o.v. only when the losing party is entitled to judgment as a matter of law. Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988). Accordingly, we will affirm a j.n.o.v. only when the evidence is insufficient as a matter of law to support the jury's verdict. See King v. Fereday, 739 P.2d 618, 620 (Utah 1987); Gustaveson v. Gregg, 655 P.2d 693, 695 (Utah 1982).

Foundation for Res Ipsa Loquitur Instruction

In Utah, res ipsa loquitur is an "evidentiary rule that allows an inference of negligence to be drawn when human experience provides a reasonable basis for concluding that an injury probably would not have happened if due care had been exercised." King v. Searle Pharmaceuticals, Inc., 832 P.2d 858, 861 (Utah 1992). To employ the doctrine of res ipsa loquitur, plaintiffs initially must "establish a foundation from which an inference of negligence can be drawn." Id.

Put another way, "[b]efore a plaintiff is entitled to a jury instruction on res ipsa loquitur, the plaintiff must have presented evidence that the occurrence of the incident is 'more probably than not caused by negligence.' " Ballow v. Monroe, 699 P.2d 719, 722 (Utah 1985) (quoting Quintal v. Laurel Grove Hosp., 62 Cal.2d 154, 41 Cal.Rptr. 577, 587, 397 P.2d 161, 171 (1964) (Traynor, C.J., concurring & dissenting)). Plaintiffs "need not eliminate all possible inferences of non-negligence, but the balance of probabilities must weigh in favor of negligence, or res ipsa loquitur does not apply." Id.

Plaintiffs must establish the requisite prima facie foundation for res ipsa loquitur through one of two ways. The Utah Supreme Court has declared:

The probability that an occurrence was produced by negligence may be established by reference to the common experiences of the community. When, however, the probabilities of a situation are outside the realm of common knowledge, expert evidence may be used to establish the necessary foundational probabilities.

Id. Thus, because an instruction on res ipsa loquitur allows a jury to infer negligence from the type of accident itself, " 'there must be a basis either in common knowledge or expert testimony that when such an accident occurs, it is more probably than not the result of negligence.' " Talbot v. Dr. W.H. Groves' Latter-Day Saints Hosp., 21 Utah 2d 73, 75, 440 P.2d 872, 874 (1968) (quoting Tomei v. Henning, 67 Cal.2d 319, 62 Cal.Rptr. 9, 11, 431 P.2d 633, 635 (1967)); accord King, 832 P.2d at 862-63. Additionally, whether a plaintiff has established the requisite foundation for a res ipsa loquitur instruction is a question of law for the trial court to answer. See W. Page Keeton et al., Prosser and Keeton on Torts § 39, at 243 & n. 15 (5th ed. 1984).

1. A Basis in Common Knowledge?

Generally, fires of unknown origin are not the type of accident to which the doctrine of res ipsa loquitur applies. Professors Prosser and Keeton explain:

[T]here are many accidents which, as a matter of common knowledge, occur frequently enough without anyone's fault. A tumble downstairs, a fall in alighting from a standing bus or street car, an ordinary slip and fall, a tire of an ordinary automobile which blows out, a skidding car, a staph infection from an operation, a fire of unknown origin, will not in themselves justify the conclusion that negligence is the most likely explanation; and to such events res ipsa loquitur does not apply.

Id. at 246 (footnotes omitted) (emphasis added). Common experience of the community demonstrates that fires frequently occur without any negligent act or omission. The Idaho Supreme Court has observed, "Our common knowledge and experience, or that of a jury, would not justify the inference that the accident would not have happened in the absence of negligence in that there are many possible causes for a building fire in the absence of negligence." Jerome Thriftway Drug, Inc. v. Winslow, 110 Idaho 615, 717 P.2d 1033, 1037 (1986). Furthermore, courts historically have begun analyses of the application of res ipsa loquitur to fires of unknown origin with "the postulate that the experience of [hu]mankind is that fires may and do in fact have multiple causes, some of which involve negligence and some of which do not." Appalachian Ins. Co. v. Knutson, 242 F.Supp. 226, 237-38 (W.D.Mo.1965), aff'd, 358 F.2d 679, 681 (8th Cir.1966). 2

Nevertheless, most courts proceed from the general premise that fires of unknown origin frequently occur in the...

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