res ipsa loquitur doctrine in North Carolina

2012The doctrine of res ipsa loquitur applies when “(1) direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident is under the defendant’s control, and (3) the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission.” Grigg v. Lester, 102 N.C.

2012App. 332, 335 , 401 S.E.2d 657, 659 (1991) (holding that the doctrine of res ipsa loquitur did not apply in a case involving a tear in the plaintiff’s uterus during a caesarean section because a layperson would not be able to determine that the force exerted by the physician during the procedure was improper or excessive).

1968The plaintiff is relying on the doctrine of res ipsa loquitur.' “The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor, In such a case, unless additional evidence, which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff’s injury is introduced, the court must nonsuit the case.” Kekelis v. Machine Works, 273 N.C. 439 , 160 S.E. 2d 320 .

1968The plaintiff is relying on the doctrine of res ipsa loquitur.' “The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor, In such a case, unless additional evidence, which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff’s injury is introduced, the court must nonsuit the case.” Kekelis v. Machine Works, 273 N.C. 439 , 160 S.E. 2d 320 .

2014Thus, in order to successfully assert a claim based on the doctrine of res ipsa loquitur, a “plaintiff must [be] able to show – without the assistance of expert testimony – that the injury was of a type not typically occurring in the absence of some negligence by defendant.” Diehl v. Koffer, 140 N.C.

2013App. at 378 , 536 S.E.2d at 362 (“[Applicability of the res ipsa loquitur doctrine depends on whether[,] as a matter of common experience^] it can be said the [injury] could have happened without dereliction of duty on the part of the person charged with culpability.” (internal quotation marks, citation, and emphasis omitted)). “ ‘Therefore, in order for the doctrine to apply, not only must plaintiff have shown that [the] injury resulted from defendant’s [negligent act], but plaintiff must [be] able to show — without the assistance of expert testimony — that the injury was of a type not typica

1971The rules governing the application of the doctrine of res ipsa loquitur in North Carolina have been stated as follows: “When a thing which causes injury is shown to be under the exclusive management of the defendant and the accident is one which in the ordinary course of events does not happen if those in control of it use proper care, the accident itself is sufficient to carry the case to the jury on the issue of defendant’s negligence.” O’Quinn v. Southard, 269 N.C. 385 , 152 S.E. 2d 538 .

1971The rules governing the application of the doctrine of res ipsa loquitur in North Carolina have been stated as follows: “When a thing which causes injury is shown to be under the exclusive management of the defendant and the accident is one which in the ordinary course of events does not happen if those in control of it use proper care, the accident itself is sufficient to carry the case to the jury on the issue of defendant’s negligence.” O’Quinn v. Southard, 269 N.C. 385 , 152 S.E. 2d 538 .

1998While the doctrine of res ipsa loquitur does not apply to slip and fall cases, Skipper v. Cheatham, 249 N.C. 706, 709 , 107 S.E.2d 625, 628 (1959), even if it did this accident would not speak for itself.

1998While the doctrine of res ipsa loquitur does not apply to slip and fall cases, Skipper v. Cheatham, 249 N.C. 706, 709 , 107 S.E.2d 625, 628 (1959), even if it did this accident would not speak for itself.

2013App. at 378 , 536 S.E.2d at 362 (“[Applicability of the res ipsa loquitur doctrine depends on whether[,] as a matter of common experience^] it can be said the [injury] could have happened without dereliction of duty on the part of the person charged with culpability.” (internal quotation marks, citation, and emphasis omitted)). “ ‘Therefore, in order for the doctrine to apply, not only must plaintiff have shown that [the] injury resulted from defendant’s [negligent act], but plaintiff must [be] able to show — without the assistance of expert testimony — that the injury was of a type not typica

2009This Court has determined that in medical malpractice cases, the doctrine of res ipsa loquitur should be "restrictive[ly]" applied, because the "`average juror [is] unfit to determine whether [a] plaintiff's injury would rarely occur in the absence of negligence[.]'" Howie v. Walsh, 168 N.C.App. 694, 698 , 609 S.E.2d 249, 251 (2005) (citation omitted).

2014App. __, __, 727 S.E.2d 877, 879 (internal quotation marks and citation omitted), disc. review dismissed, 366 N.C. 247 , 731 S.E.2d 421 (2012).

2013App._,_, 727 S.E.2d 877, 879 (quoting Grigg v. Lester, 102 N.C.

2014Id.

2014App. at _, 730 S.E.2d at 842-43 (“Here, a layperson would not be able to determine that [the] plaintiff’s injury was caused by [the drug] or be able to determine that [the doctor] was negligent in prescribing the medication to [the] plaintiff without the benefit of expert testimony.”).

2013Because “the res ipsa loquitur doctrine is only applicable where ‘there is no direct proof of the cause of the injury available to the plaintiff[,]’ ” Yorke v. Novant Health, Inc., 192 N.C.

2012Furthermore, Plaintiff offered nothing to refute Defendants’ forecast of evidence on why Decedent fell off the table, and, indeed, asserts in his pleading that Decedent’s injuries were “caused diretly [sic]” by medical personnel’s failure “to make sure that [Decedent] was securely strapped to the operating table.” 2 “Our Court has held that the res ipsa loquitur doctrine is only applicable where there is no direct proof of the cause of the injury available to the plaintiff.” Yorke v. Novant Health, Inc., 192 N.C.

2013“Issues of negligence should ordinarily be resolved by a jury and are rarely appropriate for summary judgment.” Schaffner, 77 N.C.

1989System, 77 N.C.App. 689, 691-92 , 336 S.E.2d 116, 118 (1985), disc. rev. denied, 316 N.C. 195 , 341 S.E.2d 578 -79 (1986).

1985In order to invoke the doctrine of res ipsa loquitur plaintiff must show, “(1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn’t happen without negligence on someone’s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.” Jackson v. Gin Co., 255 N.C. 194, 197 , 120 S.E. 2d 540, 542 (1961).

1985In order to invoke the doctrine of res ipsa loquitur plaintiff must show, “(1) that there was an injury, (2) that the occurrence causing the injury is one which ordinarily doesn’t happen without negligence on someone’s part, (3) that the instrumentality which caused the injury was under the exclusive control and management of the defendant.” Jackson v. Gin Co., 255 N.C. 194, 197 , 120 S.E. 2d 540, 542 (1961).

1991"The doctrine of res ipsa loquitur does not apply `when the instrumentality causing the injury is not under the exclusive control or management of the defendant.'" Wyatt v. Equipment Co., 253 N.C. 355, 363 , 117 S.E.2d 21, 26 (1960) (quoting Smith v. Oil Corp., 239 N.C. 360, 367 , 79 S.E.2d 880, 884 (1954)).

1991"The doctrine of res ipsa loquitur does not apply `when the instrumentality causing the injury is not under the exclusive control or management of the defendant.'" Wyatt v. Equipment Co., 253 N.C. 355, 363 , 117 S.E.2d 21, 26 (1960) (quoting Smith v. Oil Corp., 239 N.C. 360, 367 , 79 S.E.2d 880, 884 (1954)).

1974Although the use of the res ipsa loquitur doctrine in medical malpractice cases has been approved in several decisions of our Supreme Court, see Mitchell v. Saunders, 219 N.C. 178 , 13 S.E.2d 242 (1941); Pendergraft v. Royster, 203 N.C. 384 , 166 S.E. 285 (1932), we feel the following statement by Justice Higgins in Watson v. Clutts, 262 N.C. 153 , 136 S.E.2d 617 (1964) is applicable to the case at bar: "The decisions of this Court generally hold that liability in malpractice cases must be based on proof of actionable negligence.

1974Although the use of the res ipsa loquitur doctrine in medical malpractice cases has been approved in several decisions of our Supreme Court, see Mitchell v. Saunders, 219 N.C. 178 , 13 S.E.2d 242 (1941); Pendergraft v. Royster, 203 N.C. 384 , 166 S.E. 285 (1932), we feel the following statement by Justice Higgins in Watson v. Clutts, 262 N.C. 153 , 136 S.E.2d 617 (1964) is applicable to the case at bar: "The decisions of this Court generally hold that liability in malpractice cases must be based on proof of actionable negligence.

1991Thus, "[u]nder the principles governing *322 the application of the doctrine of res ipsa loquitur, we hold that this is not a case in which the doctrine may be appropriately applied." Sharp v. Wyse, 317 N.C. at 699 , 346 S.E.2d at 488 .

1991Thus, "[u]nder the principles governing *322 the application of the doctrine of res ipsa loquitur, we hold that this is not a case in which the doctrine may be appropriately applied." Sharp v. Wyse, 317 N.C. at 699 , 346 S.E.2d at 488 .

2000App. 332, 335 , 401 S.E.2d 657, 659 (1991) (any layman could properly infer the tear in plaintiffs abdomen sustained during caesarean section resulted from force applied by the physician; however, “in the absence of [expert] testimony . . . , a layman would have no basis for concluding that the force exerted was either improper or excessive”); and, Jackson v. Stancil and Smith v. Standcil, 253 N.C. 291, 297 , 116 S.E.2d 817, 821 (1960) (“the doctrine of res ipsa loquitur does not apply, ‘it being common knowledge that aeroplanes do fall without fault of the pilot’ ”) (quoting Smith v. Whitley,

2000App. 332, 335 , 401 S.E.2d 657, 659 (1991) (any layman could properly infer the tear in plaintiffs abdomen sustained during caesarean section resulted from force applied by the physician; however, “in the absence of [expert] testimony . . . , a layman would have no basis for concluding that the force exerted was either improper or excessive”); and, Jackson v. Stancil and Smith v. Standcil, 253 N.C. 291, 297 , 116 S.E.2d 817, 821 (1960) (“the doctrine of res ipsa loquitur does not apply, ‘it being common knowledge that aeroplanes do fall without fault of the pilot’ ”) (quoting Smith v. Whitley,