res ipsa loquitur doctrine in Oregon

2009We reject that argument without discussion. 5 Under the doctrine of res ipsa loquitur, a plaintiff can establish negligence inferentially without identifying the specific negligent conduct of the defendant, provided that it can be “ ‘reasonably found by the jury that the accident which occurred * * * is of a kind which more probably than not would not have occurred in the absence of negligence on the part of the defendant!.]’ ” McKee Electric Co. v. Carson Oil Co., 301 Or 339, 353 , 723 P2d 288 (1986) (quoting Watzig v. Tobin, 292 Or 645, 649 , 642 P2d 651 (1982)).

2009We reject that argument without discussion. 5 Under the doctrine of res ipsa loquitur, a plaintiff can establish negligence inferentially without identifying the specific negligent conduct of the defendant, provided that it can be “ ‘reasonably found by the jury that the accident which occurred * * * is of a kind which more probably than not would not have occurred in the absence of negligence on the part of the defendant!.]’ ” McKee Electric Co. v. Carson Oil Co., 301 Or 339, 353 , 723 P2d 288 (1986) (quoting Watzig v. Tobin, 292 Or 645, 649 , 642 P2d 651 (1982)).

2009We reject that argument without discussion. 5 Under the doctrine of res ipsa loquitur, a plaintiff can establish negligence inferentially without identifying the specific negligent conduct of the defendant, provided that it can be “ ‘reasonably found by the jury that the accident which occurred * * * is of a kind which more probably than not would not have occurred in the absence of negligence on the part of the defendant!.]’ ” McKee Electric Co. v. Carson Oil Co., 301 Or 339, 353 , 723 P2d 288 (1986) (quoting Watzig v. Tobin, 292 Or 645, 649 , 642 P2d 651 (1982)).

2009We reject that argument without discussion. 5 Under the doctrine of res ipsa loquitur, a plaintiff can establish negligence inferentially without identifying the specific negligent conduct of the defendant, provided that it can be “ ‘reasonably found by the jury that the accident which occurred * * * is of a kind which more probably than not would not have occurred in the absence of negligence on the part of the defendant!.]’ ” McKee Electric Co. v. Carson Oil Co., 301 Or 339, 353 , 723 P2d 288 (1986) (quoting Watzig v. Tobin, 292 Or 645, 649 , 642 P2d 651 (1982)).

1972Plaintiff relies on the doctrine of res ipsa loquitur as applied in Nicholson v. Sisters of Charity, 255 Or 251 , 463 P2d 861 (1970), and Mayor v. Dowsett, 240 Or 196 , 400 P2d 234 (1965).

1972Plaintiff relies on the doctrine of res ipsa loquitur as applied in Nicholson v. Sisters of Charity, 255 Or 251 , 463 P2d 861 (1970), and Mayor v. Dowsett, 240 Or 196 , 400 P2d 234 (1965).

2004Although negligence will not be presumed, Peltier v. Dahlke, 248 Or 512, 518 , 434 P2d 457 (1967), the lack of evidence of negligence would not necessarily entitle State Farm to summary judgment if plaintiff could provide the necessary basis for application of the doctrine of res ipsa loquitur, which allows a plaintiff to establish negligence inferentially even though “the specific negligent conduct may not be identified since there is no proof to establish it.” Kaufman v. Fisher, 230 Or 626, 636 , 371 P2d 948 (1962).

2004Although negligence will not be presumed, Peltier v. Dahlke, 248 Or 512, 518 , 434 P2d 457 (1967), the lack of evidence of negligence would not necessarily entitle State Farm to summary judgment if plaintiff could provide the necessary basis for application of the doctrine of res ipsa loquitur, which allows a plaintiff to establish negligence inferentially even though “the specific negligent conduct may not be identified since there is no proof to establish it.” Kaufman v. Fisher, 230 Or 626, 636 , 371 P2d 948 (1962).

2012Fieux, 159 Or App at 640 .

2000Res ipsa loquitur is a rule of circumstantial evidence that permits a jury to infer both negligence and causation if the harm that occurs is “ ‘of a kind that which more probably than not would not have occurred in the absence of negligence on the part of the defendant.’ ” McKee Electric Co. v. Carson Oil Co., 301 Or 339, 353 , 723 P2d 288 (1986) (quoting Watzig v. Tobin, 292 Or 645, 649 , 642 P2d 651 (1982)); Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 640 , 978 P2d 429 , rev den 329 Or 318 (1999).

2004Although negligence will not be presumed, Peltier v. Dahlke, 248 Or 512, 518 , 434 P2d 457 (1967), the lack of evidence of negligence would not necessarily entitle State Farm to summary judgment if plaintiff could provide the necessary basis for application of the doctrine of res ipsa loquitur, which allows a plaintiff to establish negligence inferentially even though “the specific negligent conduct may not be identified since there is no proof to establish it.” Kaufman v. Fisher, 230 Or 626, 636 , 371 P2d 948 (1962).

2004Although negligence will not be presumed, Peltier v. Dahlke, 248 Or 512, 518 , 434 P2d 457 (1967), the lack of evidence of negligence would not necessarily entitle State Farm to summary judgment if plaintiff could provide the necessary basis for application of the doctrine of res ipsa loquitur, which allows a plaintiff to establish negligence inferentially even though “the specific negligent conduct may not be identified since there is no proof to establish it.” Kaufman v. Fisher, 230 Or 626, 636 , 371 P2d 948 (1962).

1961Moulton v. Huckleberry, 150 Or 538 , 46 P2d 589 ; King v. Ditto, 142 Or 208 , 19 P2d 1100 ; Rayburn v. Day, supra, 126 Or 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or 481 ; Lehman v. Knott, supra, 100 Or 71 ; Hills v. Shaw, 69 Or 460, 467 , 137 P 229 ; Williams v. Poppleton, 3 Or 139 (1869).” The plaintiff also assigns as error the granting by the trial court of a judgment non obstante veredicto after the jury had returned a verdict for the plaintiff as against the defendant hospital.

1949Moulton v. Huckleberry, 150 Or. 538 , 46 P. (2d) 589 ; King v. Ditto, 142 Or. 207 , 19 P. (2d) 1100 ; Rayburn v. Day, supra, 126 Or. 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or. 481 ; Lehman v. Knott, supra, 100 Or. 71 ; Hills v. Shaw, 69 Or. 460, 467 , 137 P. 229 ; Williams v. Poppleton, 3 Or. 139 (1869).

1961Moulton v. Huckleberry, 150 Or 538 , 46 P2d 589 ; King v. Ditto, 142 Or 208 , 19 P2d 1100 ; Rayburn v. Day, supra, 126 Or 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or 481 ; Lehman v. Knott, supra, 100 Or 71 ; Hills v. Shaw, 69 Or 460, 467 , 137 P 229 ; Williams v. Poppleton, 3 Or 139 (1869).” The plaintiff also assigns as error the granting by the trial court of a judgment non obstante veredicto after the jury had returned a verdict for the plaintiff as against the defendant hospital.

1961Moulton v. Huckleberry, 150 Or 538 , 46 P2d 589 ; King v. Ditto, 142 Or 208 , 19 P2d 1100 ; Rayburn v. Day, supra, 126 Or 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or 481 ; Lehman v. Knott, supra, 100 Or 71 ; Hills v. Shaw, 69 Or 460, 467 , 137 P 229 ; Williams v. Poppleton, 3 Or 139 (1869).” The plaintiff also assigns as error the granting by the trial court of a judgment non obstante veredicto after the jury had returned a verdict for the plaintiff as against the defendant hospital.

1961Moulton v. Huckleberry, 150 Or 538 , 46 P2d 589 ; King v. Ditto, 142 Or 208 , 19 P2d 1100 ; Rayburn v. Day, supra, 126 Or 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or 481 ; Lehman v. Knott, supra, 100 Or 71 ; Hills v. Shaw, 69 Or 460, 467 , 137 P 229 ; Williams v. Poppleton, 3 Or 139 (1869).” The plaintiff also assigns as error the granting by the trial court of a judgment non obstante veredicto after the jury had returned a verdict for the plaintiff as against the defendant hospital.

1961Moulton v. Huckleberry, 150 Or 538 , 46 P2d 589 ; King v. Ditto, 142 Or 208 , 19 P2d 1100 ; Rayburn v. Day, supra, 126 Or 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or 481 ; Lehman v. Knott, supra, 100 Or 71 ; Hills v. Shaw, 69 Or 460, 467 , 137 P 229 ; Williams v. Poppleton, 3 Or 139 (1869).” The plaintiff also assigns as error the granting by the trial court of a judgment non obstante veredicto after the jury had returned a verdict for the plaintiff as against the defendant hospital.

1961Moulton v. Huckleberry, 150 Or 538 , 46 P2d 589 ; King v. Ditto, 142 Or 208 , 19 P2d 1100 ; Rayburn v. Day, supra, 126 Or 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or 481 ; Lehman v. Knott, supra, 100 Or 71 ; Hills v. Shaw, 69 Or 460, 467 , 137 P 229 ; Williams v. Poppleton, 3 Or 139 (1869).” The plaintiff also assigns as error the granting by the trial court of a judgment non obstante veredicto after the jury had returned a verdict for the plaintiff as against the defendant hospital.

1949Moulton v. Huckleberry, 150 Or. 538 , 46 P. (2d) 589 ; King v. Ditto, 142 Or. 207 , 19 P. (2d) 1100 ; Rayburn v. Day, supra, 126 Or. 150 ; Emerson v. Lumbermen’s Hospital Assn., supra, 100 Or. 481 ; Lehman v. Knott, supra, 100 Or. 71 ; Hills v. Shaw, 69 Or. 460, 467 , 137 P. 229 ; Williams v. Poppleton, 3 Or. 139 (1869).

1941The fact that the plaintiff in his complaint charged the defendant with specific acts of negligence does not deprive him of the benefit of the doctrine of res ipsa loquitur, so far as concerns the acts alleged: Boyd v. Portland Electric Co., 40 Or. 126 , 66 P. 576 , 57 L.

1941The fact that the plaintiff in his complaint charged the defendant with specific acts of negligence does not deprive him of the benefit of the doctrine of res ipsa loquitur, so far as concerns the acts alleged: Boyd v. Portland Electric Co., 40 Or. 126 , 66 P. 576 , 57 L.

1929This court applied the doctrine in Francisco v. Circle Tours Sightseeing Co., 125 Or. 80 ( 265 P. 801 ); Coblentz v. Jaloff, 115 Or. 656 ( 239 P. 825 ); Richardson v. Portland Trackless Car Co., 113 Or. 544 ( 233 P. 540 ), wherein a passenger was injured in an automobile bus..

1929This court applied the doctrine in Francisco v. Circle Tours Sightseeing Co., 125 Or. 80 ( 265 P. 801 ); Coblentz v. Jaloff, 115 Or. 656 ( 239 P. 825 ); Richardson v. Portland Trackless Car Co., 113 Or. 544 ( 233 P. 540 ), wherein a passenger was injured in an automobile bus..

2025Cite as 339 Or App 112 (2025) 115 The court declined to give the res ipsa loquitur instruction, explaining, “I don’t think it’s a situation for res ipsa because that would require * * * that the sign and the A-frame be in the exclu- sive control or almost exclusive control of the Defendant.

1992Defendants moved for summary judgment and, relying on Barrett v. Emanuel Hospital, 64 Or App 635 , 669 P2d 835 , rev den 296 Or 237 (1983), the trial court granted the motions.

1992Defendants moved for summary judgment and, relying on Barrett v. Emanuel Hospital, 64 Or App 635 , 669 P2d 835 , rev den 296 Or 237 (1983), the trial court granted the motions.

1982Beglau v. Albertus, 272 Or 170, 187 , 536 P2d 1251 (1975).” The res ipsa loquitur doctrine is of unique, inestimable assistance to plaintiffs in situations in which the plaintiff is unable to reconstruct the specific facts.

1982Beglau v. Albertus, 272 Or 170, 187 , 536 P2d 1251 (1975).” The res ipsa loquitur doctrine is of unique, inestimable assistance to plaintiffs in situations in which the plaintiff is unable to reconstruct the specific facts.

1982That conclusion is not for the court to draw, or to refuse to draw so long as there is enough to permit the jury to draw it; and even though the court would not itself infer negligence, it must still leave the question to the jury where reasonable men may differ as to the balance of probabilities.’ Prosser, Selected Topics on the Law of Torts, pp. 319-320 (1954).” Quoted in Kaufman v. Fisher, 230 Or 626, 635 , 371 P2d 948 (1962). 7 Compare Brannon v. Wood, 251 Or 349, 356-357 , 444 P2d 558 (1968), which held that where only specific acts of negligence are charged, a res ipsa loquitur instructi

1982That conclusion is not for the court to draw, or to refuse to draw so long as there is enough to permit the jury to draw it; and even though the court would not itself infer negligence, it must still leave the question to the jury where reasonable men may differ as to the balance of probabilities.’ Prosser, Selected Topics on the Law of Torts, pp. 319-320 (1954).” Quoted in Kaufman v. Fisher, 230 Or 626, 635 , 371 P2d 948 (1962). 7 Compare Brannon v. Wood, 251 Or 349, 356-357 , 444 P2d 558 (1968), which held that where only specific acts of negligence are charged, a res ipsa loquitur instructi

1972Plaintiff relies on the doctrine of res ipsa loquitur as applied in Nicholson v. Sisters of Charity, 255 Or 251 , 463 P2d 861 (1970), and Mayor v. Dowsett, 240 Or 196 , 400 P2d 234 (1965).

1972Plaintiff relies on the doctrine of res ipsa loquitur as applied in Nicholson v. Sisters of Charity, 255 Or 251 , 463 P2d 861 (1970), and Mayor v. Dowsett, 240 Or 196 , 400 P2d 234 (1965).

1965Delacroix v. Sanders, 219 Or 494 , 347 P2d 966 .

1965Delacroix v. Sanders, 219 Or 494 , 347 P2d 966 .

1961We stated in Malila v. Meacham, supra, 187 Or 330 , 354: “It is well settled that a physician or dentist is not a warrantor of cures, that the doctrine of res ipsa loquitur does not apply in malpractice *627 cases, and that, if a regularly licensed physician or dentist with reasonable diligence employs the skill of which he is possessed in treating a surgical case, he is not liable for an error of judgment.

1951In Jesionowski v. Boston & Maine Railroad, 329 U. S. 452 , 91 L.

1951In Jesionowski v. Boston & Maine Railroad, 329 U. S. 452 , 91 L.

1951In Hotel Dempsey Co. v. Teel, 128 F. 2d 673 (C.

1951In Applegate v. Portland Gas & Coke Co., 142 Or. 66 , 18 P. 2d 211 , plaintiff alleged specific acts of negligence.

1951In Applegate v. Portland Gas & Coke Co., 142 Or. 66 , 18 P. 2d 211 , plaintiff alleged specific acts of negligence.

1948The rule is so stated by the Supreme Court in Sweeney v. Erving, 228 U. S. 233 , 33 S. Ct. 416 , 57 L.

1948The rule is so stated by the Supreme Court in Sweeney v. Erving, 228 U. S. 233 , 33 S. Ct. 416 , 57 L.

1943Defendant cites a number of authorities in this connection, some of which we shall review briefly. *356 Patton v. Texas and Pacific Railway Co., (1901), 179 U. S. 658 , 21 S. Ct. 275 , 45 L.

1943Defendant cites a number of authorities in this connection, some of which we shall review briefly. *356 Patton v. Texas and Pacific Railway Co., (1901), 179 U. S. 658 , 21 S. Ct. 275 , 45 L.

1941Therefore, the doctrine of res ipsa loquitur applies : 3 Cooley on Torts, 4th Ed. § 480, page 369; 5 Wigmore on Evidence, 2d Ed., § 2509, page 498; Kelly v. Lewis Investment Co., 66 Or. 1 , 133 P. 826 , Ann.

1941Therefore, the doctrine of res ipsa loquitur applies : 3 Cooley on Torts, 4th Ed. § 480, page 369; 5 Wigmore on Evidence, 2d Ed., § 2509, page 498; Kelly v. Lewis Investment Co., 66 Or. 1 , 133 P. 826 , Ann.