res ipsa loquitur is inapplicable doctrine in Louisiana

1970See: Bartell v. Serio, La.App.1938, 180 So. 460 ; Powell v. L.

1964See: Bartell v. Serio, La.App.1938, 180 So. 460 ; Powell v. L.

1964Joynes v. Valloft & Dreaux, Inc., La.App.1941, 1 So.2d 108 . “ ‘It is the settled jurisprudence of this state that the doctrine of res ipsa loquitur is inapplicable to a store keeper whose obligation toward his customer is the use of ordinary care to keep aisles, passage ways, floors and walks in a reasonably safe condition, and no presumption of fault of the store keeper arises from the mere fact of injury to a customer.

1962Joynes v. Valloft & Dreaux, Inc., La.App.1941, 1 So.2d 108 . “[5] ‘It is the settled jurisprudence of this state that the doctrine of res ipsa loquitur is inapplicable to a store keeper whose obligation toward his customer is the use of ordinary cáre to keep aisles, passage ways, floors, and walks in a reasonably safe condition, and no presumption of fault of the store' keeper arises from the mere fact of injury to a customer.

1963Bauer v. Columbia Casualty Company, La.App., 126 So.2d 398 ; Percle v. Ordoyne et al., La.App., 150 So.2d 902 .

1961See Larkin v. State Farm Mutual Automobile Insurance Company, supra; Shields v. United Gas Pipe Line Co., La.App., 110 So.2d 881 and Bauer v. Columbia Casualty Company, La.App., 126 So.2d 398 .

2003In Arrington, 80 So.2d at 170 , one of two defendants challenged the application of res ipsa loquitur on the basis that the "plaintiff's failure to allege the exclusive management and control was in a single *892 defendant and where there is such divided responsibility the doctrine of res ipsa loquitur is inapplicable." The court found there was no authority "which denies application of the doctrine of res ipsa loquitur where the operations producing the damage complained of were activities and operations conducted solely by several defendants." Id.

2003In Arrington, 80 So.2d at 170 , one of two defendants challenged the application of res ipsa loquitur on the basis that the "plaintiff's failure to allege the exclusive management and control was in a single *892 defendant and where there is such divided responsibility the doctrine of res ipsa loquitur is inapplicable." The court found there was no authority "which denies application of the doctrine of res ipsa loquitur where the operations producing the damage complained of were activities and operations conducted solely by several defendants." Id.

1989Murphy v. Allstate Insurance Co., supra. After showing that it has provided reasonable care for its patients under the circumstances, a nursing home is not liable for injury caused by an untoward event unless it has breached a contractual agreement to furnish special care beyond that usually furnished and the breach relates to the injury sued on.

1974In order for it to apply, three requirements must be met: "1) `the accident which damaged plaintiff was caused by an agency or instrumentality within actual or constructive control of the defendant'; 2) `the accident is of a kind which ordinarily does not occur in the absence of negligence'; and 3) `the evidence as to the true explanation of the accident is more readily accessible to the defendant than to the plaintiff'," Haymark and Sons, Inc. v. Prendergast, 268 So.2d 110 (La.App. 4th Cir. 1972).

1974Tait v. Western World Insurance Company, 220 So.2d 226 (La.App. 3rd Cir. 1969).

1971The elements which a plaintiff must prove in order to support recovery were summarized in Rideau v. National Food Stores of La., Inc., 230 So.2d 665 (La.App.3d Cir. 1970) as follows : “To maintain a cause of action against the owner of a store for injuries resulting from a fall on the premises, plaintiff must show by a clear preponderance of the evidence that: (1) A dangerous condition existed at the point where the fall occurred, i. e., some foreign substance was present to account for the fall; (2) that the dangerous condition or foreign substance caused the fall; (3) that the storekeeper wa

1971Plaintiff urges this court to adopt the position stated by Judge Culpepper of the Third Circuit in his dissenting opinion in Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App.3d Cir. 1968) and by Judge Tate, then of the Third Circuit, in his concurring opinion in Broussard v. National Food Stores of La., Inc., 233 So.2d 599 (La.App.3d Cir. 1970).

1971Plaintiff urges this court to adopt the position stated by Judge Culpepper of the Third Circuit in his dissenting opinion in Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App.3d Cir. 1968) and by Judge Tate, then of the Third Circuit, in his concurring opinion in Broussard v. National Food Stores of La., Inc., 233 So.2d 599 (La.App.3d Cir. 1970).

1968Smith v. Sears, Roebuck & Co., supra; Bass v. Jones, supra. For the reasons assigned, the judgment appealed from is affirmed.

1966Inc. v. Southern Cities Distributing Company, 173 La. 1051 , 139 So. 477 , to sustain its position that the doctrine of res ipsa loquitur is inapplicable and that the plaintiff is not relieved of his obligation of proving a valid chain of causation.

1966Inc. v. Southern Cities Distributing Company, 173 La. 1051 , 139 So. 477 , to sustain its position that the doctrine of res ipsa loquitur is inapplicable and that the plaintiff is not relieved of his obligation of proving a valid chain of causation.

1966(See Davis v. Hines, 154 La. 511 , 97 So. 794 ; Prosser on Torts (2d Ed.) § 42, pp. 204-206) For the foregoing reasons we are of the opinion that the doctrine of res ipsa loquitur is inapplicable under the circumstances of the present case, and, since plaintiffs have not affirmatively proved negligence on the part of the manufacturer, there can be no recovery herein unless the alternative plea of breach of warranty is maintainable.

1966(See Davis v. Hines, 154 La. 511 , 97 So. 794 ; Prosser on Torts (2d Ed.) § 42, pp. 204-206) For the foregoing reasons we are of the opinion that the doctrine of res ipsa loquitur is inapplicable under the circumstances of the present case, and, since plaintiffs have not affirmatively proved negligence on the part of the manufacturer, there can be no recovery herein unless the alternative plea of breach of warranty is maintainable.

1964From our *412 review of the evidence we are convinced the circumstances depict a strikingly similar factual situation to the case of Plunkett v. United Electric Service, 214 La. 145 , 36 So.2d 704 .

1964From our *412 review of the evidence we are convinced the circumstances depict a strikingly similar factual situation to the case of Plunkett v. United Electric Service, 214 La. 145 , 36 So.2d 704 .

1963Bauer v. Columbia Casualty Company, La.App., 126 So.2d 398 ; Percle v. Ordoyne et al., La.App., 150 So.2d 902 .

1961See Larkin v. State Farm Mutual Automobile Insurance Company, supra; Shields v. United Gas Pipe Line Co., La.App., 110 So.2d 881 and Bauer v. Columbia Casualty Company, La.App., 126 So.2d 398 .

1961Kress & Co., La.App., 89 So.2d 475 .

1954Marine & Motor Insurance Co. v. Cathey, 8 La.App. 240 ." The court, however, did not state that even in the case of a depositary the doctrine of res ipsa loquitur is inapplicable in any and all circumstances.

1954We said: “Here-there is nothing to eliminate the possibility, or rather probability,that there must have been fault on the part of Bourg himself who was in charge of the steering, wheel and-in charge of the vessel, and, furthermore, as -we have already said, the ‘thing’ which caused the injury was -not only not under the exclusive control of the defendant, but it was under the exclusive control of plaintiff’s husband.” La.App., 52 So.2d 717, 719 .