Res Ipsa Loquitur And Watch Out Below!

          A recent Massachusetts court decision is instructive as a reminder that you need more than just an “accident” to occur in order to have a claim against a third party for your injuries. The BMC Appellate Division ruled in Gosselin v. Colonial Shopping Center, et al. that where there was no reasonable likelihood of proving any breach of a duty of reasonable care when a plaintiff was struck by falling ice and snow while on a walkway that was owned by a defendant shopping center and that fronted a defendant donut shop. Therefore, the appeals court found, the trial judge acted correctly in holding that the plaintiff could not recover damages from the defendants and awarded the defendants summary judgment.

          The defendants had moved for summary judgment based on evidence gathered during discovery. While it was clear that while the plaintiff could show injury to herself, they claimed plaintiff could not show a breach of duty by either defendant. Plaintiff tried to preserve her claim by arguing that even without direct proof of negligence, the doctrine of res ipsa loquitur applied. The court pointed out the doctrine of res ipsa loquitur does no more than recognize that negligence and causation, like other facts, may be established by circumstantial evidence. Further, and more pointedly, the court disagreed with plaintiff’s argument that an inference of negligence should be drawn from the fact that she was struck with ice and snow which she claimed came from the roof or awning of the premises. The doctrine of res ipsa loquitur applies only in cases in which the accident would not have happened, in the ordinary experience of mankind, without the negligence of the defendant or those for whom the defendant was responsible. Simply stated, evidence that an accident occurred without more is insufficient to satisfy the doctrine.

          The case is helpful in reminding people that just because an accident happens does not make someone liable for your injuries. The plaintiff in Gosselin wanted to have the court find her case analogous to Graci v. Massachusetts Gas & Elec. Light Supply Co., 7 Mass. App. Ct. 221 (1979). In Graci, there were two plaintiffs who were standing on a sidewalk in front of a building when wood, bricks, glass and other debris fell from above and struck them. In that case the court found that such an accident “may be of a kind that in the ordinary course of things would not have happened in the absence of negligence on the part of the person in control of the agency or instrumentality causing it.” In essence the court was saying that it agreed that objects such as those in Graci do not ordinarily fall from buildings upon travelers if due care is exercised.  The court, applying the doctrine of res ipsa loquitur, found that the fact that such objects fell was sufficient evidence to establish a lack of due care if no other adequate explanation of the falling otherwise appeared.

          While the court in Gosselin agreed that the property owner’s owed a duty of due care, the plaintiff failed to show any evidence indicating a breach of that duty and therefore the court did not follow the Graci ruling. As to her claim that the doctrine of res ipsa loquitur applied, the court found that this was not an appropriate application of the doctrine. Specifically, the court found that "[w]hile it may be unusual, in the absence of negligence, for wood and debris to fall from a building, the same cannot be said of snow, especially in New England.” Therefore, the court found that this was a situation where the doctrine of res ipsa loquitur did not apply, leaving the plaintiff to her burden of proof to identify the source of the ice and snow that struck her as a dangerous condition resulting from the defendants' negligence. The plaintiff was unable to so testify because she never observed the source of the ice and snow and therefore her case was summarily concluded by the court in favor of the defendants.

          The lesson is simple. Accidents can happen and sometimes one is unable to prove someone breached a duty which caused the accident. If that is the case, as it was in Gosselin, the court will be apt to find that the plaintiff’s claim “rested on nothing more than the mere occurrence of an accident, which is insufficient to establish the defendants' negligence.”

          However, this analysis is not best accomplished by a layperson. It is a highly specialized examination and often requires a detailed analysis by experienced legal counsel. It is driven by the facts involved in a particular situation and may even require the examination of not only the lawyer but also by an expert in the particular field involved. This may include experts from the fields of construction, architecture, snow removal, other property maintenance specialists or accident reconstruction experts.  

          With many years of representing both plaintiffs and defendants involved in such situations.  the personal injury attorneys at Hamblett & Kerrigan are highly skilled at managing the intricacies of analysis in personal injury claims. We have been successful in marshalling the available evidence favorable to an injured plaintiff seeking compensation for injuries due to negligence and providing, where appropriate, expert analysis and testimony to prove a breach of the duty of care. We have also been successful in defeating claims brought by injured parties against our clients by providing the court with a careful analysis that exposed the plaintiff’s inability to prove negligence despite their injuries.