Watzig v. Tobin

• Decision Date: 16 March 1982
• Docket Number: No. 19-221,19-221
• Citation: 292 Or. 645,642 P.2d 651
• Parties: , 29 A.L.R.4th 418 Margaret Ann WATZIG, Petitioner on review, v. Robert TOBIN and Raedene L. Tobin, Respondents on review. ; CA 17350; SC 27686.
• Court: Oregon Supreme Court

Page 651

642 P.2d 651

292 Or. 645, 29 A.L.R.4th 418

Margaret Ann WATZIG, Petitioner on review, v. Robert TOBIN and Raedene L. Tobin, Respondents on review.

No. 19-221; CA 17350; SC 27686.

Supreme Court of Oregon.

Argued and Submitted June 1, 1981.

Decided March 16, 1982.

Raymond J. Conboy, Portland, argued the cause for petitioner on review. With him on the brief were Garry L. Kahn and Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland.

Larry Dawson, Portland, argued the cause and filed the brief for respondents on review.

Before DENECKE, C. J., and TONGUE, ^* LENT, LINDE, PETERSON and TANZER, JJ.

PETERSON, Justice.

This is an action to recover damages for personal injuries sustained when plaintiff's car struck defendant's Holstein cow on the coast highway near Tillamook. The jury returned a special verdict finding plaintiff to be 50 percent negligent and defendant 50 percent negligent and awarded total money damages of $10,500. Plaintiff appealed, contending, inter alia, (1) that the verdict was invalid because the award was solely for special damages, or at most, nominal general damages, and thus improper, and (2) that the trial court erred in refusing to give her requested instructions on res ipsa loquitur and statutory negligence. The Court of Appeals affirmed. We allowed the plaintiff's petition for review to consider the res ipsa loquitur and statutory negligence aspects of the case.

I FACTS

It was after midnight. The plaintiff was driving north on highway 101 near Tillamook. She saw a cow on the side of the highway. She slowed, went around the animal, and as she did so she saw a second cow which she ran into. Both cows belonged to the defendants and had escaped from their farm.

There were three gates to the barnyard where the cows were confined. Two of the three gates were permanently secured with rope and wire, so securely that in order to open them "you just about had to have wire cutters." The third gate, through which cows had escaped in the past, had been equipped with a "cable clamp" device several months before the accident.

The defendants' daughter, Linda, a community college student who was familiar with dairy operations, was in temporary charge while her parents were visiting in Washington. Linda testified that she visually checked the gates from inside the house before going to bed at approximately 10:30, that there was a yard lamp that illuminated the area, and that she could see two of the three barnyard gates from the window of her parents' bedroom, including the gate which was not permanently wired shut. At that time the gates were closed. Her brother, Robert, testified that he had hurriedly checked the gates in the afternoon after milking and that he again checked the gates when he returned from a party, slightly intoxicated, at 1:30 a. m. The accident occurred at about 2 a. m.

II APPLICATION OF RES IPSA LOQUITUR

The Court of Appeals, 623 P.2d 1121, 50 Or.App. 539, held that this was not an appropriate case for a res ipsa loquitur instruction, stating:

"Plaintiff also argues that this was an appropriate case for the trial court to give an instruction on res ipsa loquitur. Res ipsa would properly apply if no conclusion could be drawn from the fact a cow escaped from a pasture other than that the owner was negligent. Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234 (1965); Powell v. Moore, 228 Or. 255, 265-66, 364 P.2d 1094 (1961). Cases in other jurisdictions go both ways on whether res ipsa loquitur should apply to cases involving animals on the highway. We believe the better view is that the mere presence of the animal at large is not enough to establish an inference that the owner was negligent in the manner in which he confined it, since a cow can escape from even an adequate enclosure. * * *" 50 Or.App. at 545, 623 P.2d 1121.

There is nothing particularly mysterious or profound about the doctrine of res ipsa loquitur. Perhaps the labeling of the doctrine with a Latin title has served to confuse rather than enlighten. In essence, the rule that "the thing speaks for itself," res ipsa loquitur, is a rule of circumstantial evidence that allows an inference of negligence to be drawn if the accident is of a kind which ordinarily would not have occurred in the absence of the defendant's negligence, even though it is impossible to determine the specific way in which the defendant was negligent. Kaufman v. Fisher, 230 Or. 626, 635, 371 P.2d 948 (1962).

This court's most comprehensive discussion of the res ipsa loquitur doctrine appears in Kaufman v. Fisher, supra, in which we stated:

"* * * If the accident is of a kind which ordinarily would not have occurred in the absence of defendant's negligence, an inference is permissible that defendant was negligent in some particular, even though it is impossible to determine in what specific way defendant was negligent. Thus it is seen that when the doctrine is applicable the jury is permitted to speculate in the sense that it may say: 'We believe that defendant must have been negligent since accidents of this kind do not ordinarily occur in the absence of negligence, but we can not point to any specific conduct, such as the failure to keep a lookout, as a basis for our inference.' " 230 Or. at 635, 371 P.2d 948.

We specifically held that "* * * (t)o make the doctrine of res ipsa loquitur available to the plaintiff it is not necessary that he eliminate other probable causes." The test was stated as follows: "Could it have been reasonably found by the jury that the accident which occurred in this case is of a kind which more probable (sic) ¹ than not would not have occurred in the absence of negligence on the part of (the defendant)?" 230 Or. at 638-639, 371 P.2d 948.

"It is sometimes intimated that the doctrine of res ipsa loquitur does not apply unless there is something more than a preponderating probability of defendant's negligence, i.e., that the accident must not only 'speak' of defendant's negligence-it must 'scream' that such is the case. But, as it has been pointed out, 'Res ipsa loquitur is applied not only where the inference is compelling but far more often where it is relatively weak and barely permissible.' Prosser, Selected Topics on the Law of Torts, p. 360 (1953). * * *" (Footnotes omitted; emphasis in original.) 230 Or. at 636-637, 371 P.2d 948. ²

The Court of Appeals was not correct in stating that res ipsa loquitur would only apply if no conclusion could be drawn from the fact that a cow escaped from a pasture other than that the accident was caused by the defendants' negligence. In this case the operative incident is the escape of the cows. Res ipsa loquitur applies if the incident-the escape of the cows-was of a kind which does not normally occur in the absence of negligence and the negligence which caused the incident was probably that of the defendant.

In a number of earlier cases we have listed "elements" of res ipsa loquitur which must be proved. For example, in Brannon v. Wood, 251 Or. 349, 355, 444 P.2d 558 (1968), we stated that the elements of res ipsa loquitur are:

" ' "* * * (1) the accident 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. * * * " Prosser, Law of Torts (2d ed.) 201-202, § 42.' * * *"

In Kaufman v. Fisher, 230 Or. 626, 634, 371 P.2d 948 (1962), we also relied on Prosser and listed these "necessary elements of the doctrine":

" '* * * One type of circumstantial evidence, to which the courts have given the name res ipsa loquitur, arises where

" 'a. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence, and

" 'b. The apparent cause of the accident is such that the defendant would be responsible for any negligence connected with it, and

" 'c. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.' "

In Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974), we held that exclusive control is not required ³ and both Cramer v. Mengerhausen, 275 Or. 223, 228, 550 P.2d 740 (1976), and Powell v. Moore, 228 Or. 255, 268, 364 P.2d 1094 (1961), make it clear that the plaintiff's participation does not necessarily exclude the operation of res ipsa loquitur. ⁴

If exclusive control or custody is not required, and if plaintiff's voluntary participation does not bar its application, res ipsa loquitur would seem to require nothing more than evidence from which it could be concluded that the event was of a kind which does not normally occur in the absence of negligence and that the negligence which caused the event was probably that of the defendant. Obviously, the participation of the plaintiff or others in the event or in the control of the instrumentality are relevant, but strictly speaking, the operation of res ipsa loquitur requires neither exclusive custody or control of the defendant nor absence of participation by the plaintiff.

The Court of Appeals' reliance on the fact that "a cow can escape from even an adequate enclosure," as support for its holding that res ipsa loquitur is inapplicable in such cases, is unpersuasive. The conclusion which must be drawn to render the doctrine applicable is not whether a cow can escape such an enclosure, but rather whether a jury could reasonably find, under the evidence, that it is more probable than not that the escape of the cows would not normally occur in the absence of negligence and that the negligence was that of the defendants. Kaufman v. Fisher, supra, 230 Or. at 636, 639-640, 371 P.2d 948. ⁵

This is not a situation, such as might be presented in a medical malpractice case, in which plaintiff would need expert testimony to show that accidents of this kind do not commonly happen in the absence...