conditional res ipsa loquitur instruction in California

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1964In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.” (Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ].) Since the possible causes of cardiac arrests are not a matter of common knowledge (cf. Davis v. Memorial Hospital, 58 Cal.2d 815, 817 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ]), expert testimony is required before a conditional res ipsa loquitur instruction would be proper.

1964In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.” (Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ].) Since the possible causes of cardiac arrests are not a matter of common knowledge (cf. Davis v. Memorial Hospital, 58 Cal.2d 815, 817 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ]), expert testimony is required before a conditional res ipsa loquitur instruction would be proper.

1973(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [ 71 Cal.Rptr. 903 , 445 P.2d 519 ]; Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [ 58 Cal.Rptr. 125 , 426 P.2d 525 ]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163-164 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817-819 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The trial judge must, upon request, inform the jury that if it finds facts giving rise to the doctrine are established it may find for the plaintiff but that, after weighing all of the evidence and drawing such inferences therefro

1973(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [ 71 Cal.Rptr. 903 , 445 P.2d 519 ]; Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [ 58 Cal.Rptr. 125 , 426 P.2d 525 ]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163-164 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817-819 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The trial judge must, upon request, inform the jury that if it finds facts giving rise to the doctrine are established it may find for the plaintiff but that, after weighing all of the evidence and drawing such inferences therefro

1973(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [ 71 Cal.Rptr. 903 , 445 P.2d 519 ]; Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [ 58 Cal.Rptr. 125 , 426 P.2d 525 ]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163-164 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817-819 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The trial judge must, upon request, inform the jury that if it finds facts giving rise to the doctrine are established it may find for the plaintiff but that, after weighing all of the evidence and drawing such inferences therefro

1973(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [ 71 Cal.Rptr. 903 , 445 P.2d 519 ]; Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [ 58 Cal.Rptr. 125 , 426 P.2d 525 ]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163-164 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817-819 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The trial judge must, upon request, inform the jury that if it finds facts giving rise to the doctrine are established it may find for the plaintiff but that, after weighing all of the evidence and drawing such inferences therefro

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1964In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.” (Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ].) Since the possible causes of cardiac arrests are not a matter of common knowledge (cf. Davis v. Memorial Hospital, 58 Cal.2d 815, 817 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ]), expert testimony is required before a conditional res ipsa loquitur instruction would be proper.

1964In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.” (Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ].) Since the possible causes of cardiac arrests are not a matter of common knowledge (cf. Davis v. Memorial Hospital, 58 Cal.2d 815, 817 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ]), expert testimony is required before a conditional res ipsa loquitur instruction would be proper.

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

1965Code, § 560, subd. (a) in Smith , §§ 670, subds. (a) and (c) and 679 in Alarid , and new § 21801 in Wickesser . ) Beeks suggests that in the latter situation there is no error in giving the "mere fact" instruction by analogy to cases which have held it not erroneous to give the instruction with a conditional res ipsa loquitur instruction. ( Middleton v. Post Transportation Co. (1951) 106 Cal. App.2d 703, 705 [ 235 P.2d 855 ], cited with approval in Barrera v. De La Torre, supra, 48 Cal.2d 166, 171 ; and see Rubenstein v. Ohrbach's Inc., supra, 175 Cal. App.2d 630, 634-635 ; Amar v. Union Oil C

2013In such case, the jury must first determine that each of the three conditions exists—or, as the case may be, some or one of them, to whatever extent none exists as a matter of law—before the trial court can direct that the inference of negligence be drawn. [Citation.]‖ (McFarland v. Booker (1967) 250 Cal.App.2d 402 , 411-412, fn. omitted.) ―In order to justify the conditional res ipsa loquitur instruction, a plaintiff need not demonstrate all the facts necessary to the res ipsa loquitur inference, but need only produce evidence sufficient to support findings that the requisite conditions are p

1989The court’s nine-page ruling on the motion for new trial, including its specification of reasons for finding excessive damages, is attached to this opinion as Appendix A. Defendant’s Appeal Defendant’s sole contention on appeal is that the court erroneously and prejudicially charged the jury with the conditional res ipsa loquitur instruction. 7 For the reasons stated below, we find this contention to be without merit. *1194 “It is settled law in this state that the ‘doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past expe

1989The court’s nine-page ruling on the motion for new trial, including its specification of reasons for finding excessive damages, is attached to this opinion as Appendix A. Defendant’s Appeal Defendant’s sole contention on appeal is that the court erroneously and prejudicially charged the jury with the conditional res ipsa loquitur instruction. 7 For the reasons stated below, we find this contention to be without merit. *1194 “It is settled law in this state that the ‘doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past expe

1973(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [ 71 Cal.Rptr. 903 , 445 P.2d 519 ]; Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [ 58 Cal.Rptr. 125 , 426 P.2d 525 ]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163-164 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817-819 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The trial judge must, upon request, inform the jury that if it finds facts giving rise to the doctrine are established it may find for the plaintiff but that, after weighing all of the evidence and drawing such inferences therefro

1973(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 424 [ 71 Cal.Rptr. 903 , 445 P.2d 519 ]; Clark v. Gibbons (1967) 66 Cal.2d 399, 412 [ 58 Cal.Rptr. 125 , 426 P.2d 525 ]; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163-164 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817-819 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ].) The trial judge must, upon request, inform the jury that if it finds facts giving rise to the doctrine are established it may find for the plaintiff but that, after weighing all of the evidence and drawing such inferences therefro

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1973In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone’s negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and the injury must not have been due to any voluntary action or contribution on the part of plaintiff. 3 (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Tomei v. Henning (1967) 67 Cal.2d 319, 322 [ 62 Cal.Rptr. 9 , 431 P.2d 633 ]; Seneris v. Haas (1955) 45 Ca

1971(Keena v. Scales (1964) 61 Cal.2d 779, 783 [ 40 Cal.Rptr. 65 , 394 P.2d 809 ].) ARC’S challenge to the instruction is but a variation of the argument that its construction delays were caused by the dilatoriness of MKE and the state in approving its proposed construction schedule.

1971(Keena v. Scales (1964) 61 Cal.2d 779, 783 [ 40 Cal.Rptr. 65 , 394 P.2d 809 ].) ARC’S challenge to the instruction is but a variation of the argument that its construction delays were caused by the dilatoriness of MKE and the state in approving its proposed construction schedule.

1971(See, e.g., Poulsen v. Charlton (1964) 224 Cal.App.2d 262, 268 [ 36 Cal.Rptr. 347 ].) In order to justify the conditional res ipsa loquitur instruction, a plaintiff need not demonstrate all the facts necessary to the res ipsa loquitur inference, but need only produce evidence sufficient to support findings that the requisite conditions are present.

1971(See, e.g., Poulsen v. Charlton (1964) 224 Cal.App.2d 262, 268 [ 36 Cal.Rptr. 347 ].) In order to justify the conditional res ipsa loquitur instruction, a plaintiff need not demonstrate all the facts necessary to the res ipsa loquitur inference, but need only produce evidence sufficient to support findings that the requisite conditions are present.

1970(Hansen v. Warco Steel Corp., 237 Cal.App.2d 870, 878 [ 47 Cal.Rptr. 428 , 48 Cal.Rptr. 164 ].) We next consider the plaintiffs’ cross-appeal predicated upon the court’s failure to give a conditional res ipsa loquitur instruction as requested by the plaintiffs.

1970(Hansen v. Warco Steel Corp., 237 Cal.App.2d 870, 878 [ 47 Cal.Rptr. 428 , 48 Cal.Rptr. 164 ].) We next consider the plaintiffs’ cross-appeal predicated upon the court’s failure to give a conditional res ipsa loquitur instruction as requested by the plaintiffs.