res ipsa loquitur doctrine in Washington

1946No. 1, 21 Wn. (2d) 89, 149 P. (2d) 918 , in which the doctrine was applied, as follows: “ ‘It is true, as appellant points out, that the doctrine of res ipsa loquitur is not a substantive rule of law, but simply a rule of evidence (Penson v. Inland Empire Paper Co., 73 Wash. 338 , 132 Pac. 39 , L.

1946No. 1, 21 Wn. (2d) 89, 149 P. (2d) 918 , in which the doctrine was applied, as follows: “ ‘It is true, as appellant points out, that the doctrine of res ipsa loquitur is not a substantive rule of law, but simply a rule of evidence (Penson v. Inland Empire Paper Co., 73 Wash. 338 , 132 Pac. 39 , L.

2013Tank Lines, 36 Wn.2d 381, 390 , 218 P.2d 322 (1950)). ¶64 To establish that the doctrine of res ipsa loquitur applies to a plaintiff’s case, the evidence must show that “(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.” Horner, 62 Wn.2d at 359 . ¶65 Three situations where

2013Tank Lines, 36 Wn.2d 381, 390 , 218 P.2d 322 (1950)). ¶64 To establish that the doctrine of res ipsa loquitur applies to a plaintiff’s case, the evidence must show that “(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.” Horner, 62 Wn.2d at 359 . ¶65 Three situations where

2003Being satisfied that the record supports all the elements of res ipsa loquitur we turn, finally, to consideration of the question of whether the res ipsa loquitur doctrine has no place in a case where "`there is evidence that the action could occur without negligence on the defendant's part.'" Pacheco, 110 Wash. App. at 918 , 43 P.3d 535 (quoting Kimball, 89 Wash.App. at 177 , 947 P.2d 1275 ).

2003Being satisfied that the record supports all the elements of res ipsa loquitur we turn, finally, to consideration of the question of whether the res ipsa loquitur doctrine has no place in a case where "`there is evidence that the action could occur without negligence on the defendant's part.'" Pacheco, 110 Wash. App. at 918 , 43 P.3d 535 (quoting Kimball, 89 Wash.App. at 177 , 947 P.2d 1275 ).

2003Mortgage, 37 Wash.App. at 243 , 679 P.2d 943 ; see also Zukowsky, 79 Wash.2d at 601-02 , 488 P.2d 269 ; Morner, 31 Wash.2d at 291 , 196 P.2d 744 ; Firebaugh, 40 Wash. at 664 , 82 P. 995 ; TEGLAND, supra. That a plaintiff does not know how the injury was caused does not defeat his use of the res ipsa loquitur "tool"—the inference of the defendant's negligence— where the plaintiff has shown all of the required elements of the doctrine of res ipsa loquitur.

2003App. at 243 ; see also Zukowsky, 79 Wn.2d at 601-02 ; Morner, 31 Wn.2d at 291 ; Firebaugh , 40 Wash, at 664; 5 Tegland, supra. That a plaintiff does not know how the injury was caused does not defeat his use of the res ipsa loquitur “tool” — the inference of the defendant’s negligence — where the plaintiff has shown all of the required elements of the doctrine of res ipsa loquitur.

2013Kemalyan v. Henderson, 45 Wn.2d 693, 704-05 , 277 P.2d 372 (1954). ¶67 JMR contends the trial court erred by dismissing the negligence claim on summary judgment because JMR established that the doctrine of res ipsa loquitur applies.

2013Kemalyan v. Henderson, 45 Wn.2d 693, 704-05 , 277 P.2d 372 (1954). ¶67 JMR contends the trial court erred by dismissing the negligence claim on summary judgment because JMR established that the doctrine of res ipsa loquitur applies.

2009Mortgage, 37 Wash.App. at 243-44 , 679 P.2d 943 . [75] Id. at 243 , 679 P.2d 943 . [76] Id. [77] Compare Pacheco, 149 Wash.2d at 444 , 69 P.3d 324 (a patient is entitled to a res ipsa loquitur instruction where a defendant dentist drilled on the wrong side of that patient's mouth and the dentist's evidence suggested but did not completely explain how the event causing incident may have occurred) and Covey v. Western Tank Lines, 36 Wash.2d 381, 391 , 218 P.2d 322 (1950) (if evidence is completely explanatory of how the accident occurred such that no inference is left that the accident may have

2009Mortgage, 37 Wash.App. at 243-44 , 679 P.2d 943 . [75] Id. at 243 , 679 P.2d 943 . [76] Id. [77] Compare Pacheco, 149 Wash.2d at 444 , 69 P.3d 324 (a patient is entitled to a res ipsa loquitur instruction where a defendant dentist drilled on the wrong side of that patient's mouth and the dentist's evidence suggested but did not completely explain how the event causing incident may have occurred) and Covey v. Western Tank Lines, 36 Wash.2d 381, 391 , 218 P.2d 322 (1950) (if evidence is completely explanatory of how the accident occurred such that no inference is left that the accident may have

2003Brown v. Dahl, 41 Wash.App. 565, 582 , 705 P.2d 781 (1985) (citing ZeBarth v. Swedish Hosp.

2003Brown v. Dahl, 41 Wn.

2003Once the plaintiff establishes a prima facie case, the defendant must then offer an explanation, if he can. “ ‘If then, after considering such explanation, on the whole case and on all the issues as to negligence, injury and damages, the evidence still prepon derates in favor of the plaintiff, plaintiff is entitled to recover; otherwise not.’ ” Covey, 36 Wn.2d at 392 (quoting Hardman v. Younkers, 15 Wn.2d 483, 493 , 131 P.2d 177 (1942)).

1949They were quoted and approved in Genero v. Ewing, 176 Wash. 78, 82 , 28 P. (2d) 116 , and Kolbe v. Public Market Delivery & Transfer, 130 Wash. 302, 306 , 226 Pac. 1021 , and, more recently, in Hardman v. Younkers, 15 Wn. (2d) 483, 493, 131 P. (2d) 177 , in which we also said: “Although a plaintiff may have made a prima facie case of negligence through the application of the doctrine of res ipsa loquitur, he still has the burden of proof or, as is sometimes expressed, the burden of making the better case, upon that issue when finally submitted to the trier of the fact.

1946Co., 220 Mass. 414 , 107 N. E. 933 , it is said: “ ‘The case at bar is not within the doctrine of res ipsa loquitur, which oftentimes is enough to support a finding of negligence on the part of a common carrier. [Citing cases.] That doctrine does not establish liability where a definite cause is clear on the evidence.

1928Co., 220 Mass. 414 , 107 N. E. 933 , it is said: “ ‘The case at bar is not within the doctrine of res ipsa loquitur, which oftentimes is enough to support a finding of negligence on the part of a common carrier.

2013Tank Lines, 36 Wn.2d 381, 390 , 218 P.2d 322 (1950)). ¶64 To establish that the doctrine of res ipsa loquitur applies to a plaintiff’s case, the evidence must show that “(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.” Horner, 62 Wn.2d at 359 . ¶65 Three situations where

2013Tank Lines, 36 Wn.2d 381, 390 , 218 P.2d 322 (1950)). ¶64 To establish that the doctrine of res ipsa loquitur applies to a plaintiff’s case, the evidence must show that “(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.” Horner, 62 Wn.2d at 359 . ¶65 Three situations where

2009Knowing that the new owners planned to level the property to build a school, Claire said she saw no reason to replace the dock. [7] ("Because there are other causes that could have resulted in the failure of the dock step other than the negligence of the landlord, that is failure to inspect or maintain, under these facts, the Court concludes that the doctrine of res ipsa loquitur does not apply.") [8] Sheikh v. Choe, 156 Wash.2d 441, 447 , 128 P.3d 574 (2006). [9] Hertog v. City of Seattle, 138 Wash.2d 265, 275 , 979 P.2d 400 (1999). [10] Balise v. Underwood, 62 Wash.2d 195 , 381 P.2d 966 (196

2009Hertog v. City of Seattle, 138 Wn.2d 265, 275 , 979 P.2d 400 (1999).

2009Knowing that the new owners planned to level the property to build a school, Claire said she saw no reason to replace the dock. [7] ("Because there are other causes that could have resulted in the failure of the dock step other than the negligence of the landlord, that is failure to inspect or maintain, under these facts, the Court concludes that the doctrine of res ipsa loquitur does not apply.") [8] Sheikh v. Choe, 156 Wash.2d 441, 447 , 128 P.3d 574 (2006). [9] Hertog v. City of Seattle, 138 Wash.2d 265, 275 , 979 P.2d 400 (1999). [10] Balise v. Underwood, 62 Wash.2d 195 , 381 P.2d 966 (196

2009Knowing that the new owners planned to level the property to build a school, Claire said she saw no reason to replace the dock. (“Because there are other causes that could have resulted in the failure of the dock step other than the negligence of the landlord, that is failure to inspect or maintain, under these facts, the Court concludes that the doctrine of res ipsa loquitur does not apply.”) Aba Sheikh v. Choe, 156 Wn.2d 441, 447 , 128 P.3d 574 (2006).

2009Knowing that the new owners planned to level the property to build a school, Claire said she saw no reason to replace the dock. [7] ("Because there are other causes that could have resulted in the failure of the dock step other than the negligence of the landlord, that is failure to inspect or maintain, under these facts, the Court concludes that the doctrine of res ipsa loquitur does not apply.") [8] Sheikh v. Choe, 156 Wash.2d 441, 447 , 128 P.3d 574 (2006). [9] Hertog v. City of Seattle, 138 Wash.2d 265, 275 , 979 P.2d 400 (1999). [10] Balise v. Underwood, 62 Wash.2d 195 , 381 P.2d 966 (196

2009Hertog v. City of Seattle, 138 Wn.2d 265, 275 , 979 P.2d 400 (1999).

2009Knowing that the new owners planned to level the property to build a school, Claire said she saw no reason to replace the dock. [7] ("Because there are other causes that could have resulted in the failure of the dock step other than the negligence of the landlord, that is failure to inspect or maintain, under these facts, the Court concludes that the doctrine of res ipsa loquitur does not apply.") [8] Sheikh v. Choe, 156 Wash.2d 441, 447 , 128 P.3d 574 (2006). [9] Hertog v. City of Seattle, 138 Wash.2d 265, 275 , 979 P.2d 400 (1999). [10] Balise v. Underwood, 62 Wash.2d 195 , 381 P.2d 966 (196

2009Knowing that the new owners planned to level the property to build a school, Claire said she saw no reason to replace the dock. (“Because there are other causes that could have resulted in the failure of the dock step other than the negligence of the landlord, that is failure to inspect or maintain, under these facts, the Court concludes that the doctrine of res ipsa loquitur does not apply.”) Aba Sheikh v. Choe, 156 Wn.2d 441, 447 , 128 P.3d 574 (2006).

2006Khirieh, 594 So.2d at 1222 .

2006Khirieh, 594 So. 2d at 1222 .

2003Kemalyan, 45 Wn.2d at 704 (citing Nopson v. Wockner, 40 Wn.2d 645 , 245 P.2d 1022 (1952); Covey, 36 Wn.2d 381 ; D’Amico v. Conguista, 24 Wn.2d 674 , 167 P.2d 157 (1946); Mahlum v. Seattle Sch.

2003Kemalyan, 45 Wn.2d at 704 (citing Nopson v. Wockner, 40 Wn.2d 645 , 245 P.2d 1022 (1952); Covey, 36 Wn.2d 381 ; D’Amico v. Conguista, 24 Wn.2d 674 , 167 P.2d 157 (1946); Mahlum v. Seattle Sch.

2003Kemalyan, 45 Wn.2d at 704 (citing Nopson v. Wockner, 40 Wn.2d 645 , 245 P.2d 1022 (1952); Covey, 36 Wn.2d 381 ; D’Amico v. Conguista, 24 Wn.2d 674 , 167 P.2d 157 (1946); Mahlum v. Seattle Sch.

2003Kemalyan, 45 Wn.2d at 704 (citing Nopson v. Wockner, 40 Wn.2d 645 , 245 P.2d 1022 (1952); Covey, 36 Wn.2d 381 ; D’Amico v. Conguista, 24 Wn.2d 674 , 167 P.2d 157 (1946); Mahlum v. Seattle Sch.

2003Gayheart, 648 N.E.2d at 79 .

2003Gayheart, 648 N.E.2d at 79 .

2003Mortgage, 37 Wash.App. at 243 , 679 P.2d 943 ; see also Zukowsky, 79 Wash.2d at 601-02 , 488 P.2d 269 ; Morner, 31 Wash.2d at 291 , 196 P.2d 744 ; Firebaugh, 40 Wash. at 664 , 82 P. 995 ; TEGLAND, supra. That a plaintiff does not know how the injury was caused does not defeat his use of the res ipsa loquitur "tool"—the inference of the defendant's negligence— where the plaintiff has shown all of the required elements of the doctrine of res ipsa loquitur.

2003Mortgage, 37 Wash.App. at 243 , 679 P.2d 943 ; see also Zukowsky, 79 Wash.2d at 601-02 , 488 P.2d 269 ; Morner, 31 Wash.2d at 291 , 196 P.2d 744 ; Firebaugh, 40 Wash. at 664 , 82 P. 995 ; TEGLAND, supra. That a plaintiff does not know how the injury was caused does not defeat his use of the res ipsa loquitur "tool"—the inference of the defendant's negligence— where the plaintiff has shown all of the required elements of the doctrine of res ipsa loquitur.

2003Being satisfied that the record supports all the elements of res ipsa loquitur we turn, finally, to consideration of the question of whether the res ipsa loquitur doctrine has no place in a case where "`there is evidence that the action could occur without negligence on the defendant's part.'" Pacheco, 110 Wash. App. at 918 , 43 P.3d 535 (quoting Kimball, 89 Wash.App. at 177 , 947 P.2d 1275 ).

2003Being satisfied that the record supports all the elements of res ipsa loquitur we turn, finally, to consideration of the question of whether the res ipsa loquitur doctrine has no place in a case where “ ‘there is evidence that the action could occur without negligence on the defendant’s part.’ ” Pacheco, 110 Wn.

1985Miller v. Kennedy, 11 Wn.

1976Plaintiff’s argument not only presupposes that his evidence shows inter alia that plaintiff sustained an injury that ordinarily would not have occurred without negligence, Miller v. Kennedy, 11 Wn.

1984Zukowsky v. Brown, 79 Wn.2d 586, 594 , 488 P.2d 269 (1971); Pacific Coast R.R. v. American Mail Line, Ltd., 25 Wn.2d 809, 813 , 172 P.2d 226 (1946).

1949Co. v. American Mail Line, 25 Wn. (2d) 809, 172 P. (2d) 226 , we held that the evidence was insufficient to bring the case within the scope of the doctrine of res ipsa loquitur.