res ipsa loquitur doctrine in California

1970This doctrine of res ipsa loquitur 4 applies in cases in which (1) the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489 [ 154 P.2d 687 , 162 A.L.R. 1258 ]) and (2) defendant is probably the person who is responsible.

1970This doctrine of res ipsa loquitur 4 applies in cases in which (1) the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489 [ 154 P.2d 687 , 162 A.L.R. 1258 ]) and (2) defendant is probably the person who is responsible.

1993Even granting the premise that the concept of exclusive control is somewhat flexible, and that "the plaintiff need not exclude all other persons who might possibly have been responsible" ( Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [ 247 P.2d 344 ]), the evidence in this case still does not support the necessary conclusion that "it is more probable than not that the injury was the result of the defendant's negligence." ( Id., at p. 443, first italics added.) Accordingly, the Court of Appeal erred in holding that the evidence was sufficient to raise a presumption of negligenc

1993Even granting the premise that the concept of exclusive control is somewhat flexible, and that "the plaintiff need not exclude all other persons who might possibly have been responsible" ( Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 443-444 [ 247 P.2d 344 ]), the evidence in this case still does not support the necessary conclusion that "it is more probable than not that the injury was the result of the defendant's negligence." ( Id., at p. 443, first italics added.) Accordingly, the Court of Appeal erred in holding that the evidence was sufficient to raise a presumption of negligenc

1970Res Ipsa Loquitur in California Medical Malpractice Law —Expansion of a Doctrine to the Bursting Point (1962) 14 Stan.L.Rev. 251, 277-280. 9 Other injection cases in which the doctrine of res ipsa loquitur has been applied include: Seneris v. Haas (1955) 45 Cal.2d 811, 825 [ 291 P.2d 915 , 53 A.L.R.2d 124 ] (“plaintiffs have made out a prima facie case by both medical testimony and common knowledge” that a woman does not ordinarily become permanently paralyzed following childbirth after having had a spinal anesthetic); Barham v. Widing, supra, 210 Cal. 206, 214-215 (patient received infection

1970Res Ipsa Loquitur in California Medical Malpractice Law —Expansion of a Doctrine to the Bursting Point (1962) 14 Stan.L.Rev. 251, 277-280. 9 Other injection cases in which the doctrine of res ipsa loquitur has been applied include: Seneris v. Haas (1955) 45 Cal.2d 811, 825 [ 291 P.2d 915 , 53 A.L.R.2d 124 ] (“plaintiffs have made out a prima facie case by both medical testimony and common knowledge” that a woman does not ordinarily become permanently paralyzed following childbirth after having had a spinal anesthetic); Barham v. Widing, supra, 210 Cal. 206, 214-215 (patient received infection

1965Where the uncontradicted evidence warrants the application of the doctrine of res ipsa loquitur it is error to give a “mere fact” instruction (Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ]; followed in: Amar v. Union Oil Co. (1958) 166 Cal.App.2d 424, 427-429 [ 333 P.2d 449 ]; Persike v. Gray (1963) 215 Cal.App.2d 816, 820-822 [ 30 Cal.Rptr. 603 ]; and recognized in: Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 778-779 [ 327 P.2d 111 ]; Guerra v. Handlery Hotels, Inc. (1959) 53 Cal.2d 266, 270-273 [ 347 P.2d 674 ]; Williams v. Cole (1960) 181 Cal.App.2d 70, 74 [ 5 Cal.Rptr. 24

1965Where the uncontradicted evidence warrants the application of the doctrine of res ipsa loquitur it is error to give a “mere fact” instruction (Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ]; followed in: Amar v. Union Oil Co. (1958) 166 Cal.App.2d 424, 427-429 [ 333 P.2d 449 ]; Persike v. Gray (1963) 215 Cal.App.2d 816, 820-822 [ 30 Cal.Rptr. 603 ]; and recognized in: Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 778-779 [ 327 P.2d 111 ]; Guerra v. Handlery Hotels, Inc. (1959) 53 Cal.2d 266, 270-273 [ 347 P.2d 674 ]; Williams v. Cole (1960) 181 Cal.App.2d 70, 74 [ 5 Cal.Rptr. 24

1969“If, and only if, you find that the plaintiff’s injury was of a kind which ordinarily does not occur in the absence of negligence, you are instructed as follows: “From the happening of the injury involved in this case, an inference may be drawn that a proximate cause of the occurrence was some negligent conduct on the part of the defendant.” (Italics added.) In the leading case of Siverson v. Weber, 57 Cal.2d 834 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ], the California Supreme Court held that if the evidence merely proves that a *780 patient has suffered an unfortunate result which rarely occurs fro

1969“If, and only if, you find that the plaintiff’s injury was of a kind which ordinarily does not occur in the absence of negligence, you are instructed as follows: “From the happening of the injury involved in this case, an inference may be drawn that a proximate cause of the occurrence was some negligent conduct on the part of the defendant.” (Italics added.) In the leading case of Siverson v. Weber, 57 Cal.2d 834 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ], the California Supreme Court held that if the evidence merely proves that a *780 patient has suffered an unfortunate result which rarely occurs fro

1960The second instruction disapproved by appellant charged the jury: “The mere fact that an accident happened considered alone does not give rise to a legal inference that it was caused by negligence or that any party to this action was negligent.” While this instruction is proper in many eases (Shaw v. Pacific Greyhound Lines (1958), 50 Cal.2d 153, 156 [ 323 P.2d 391 ]), the Supreme Court has held its rendition erroneous in two situations: (1) where the uncontradieted evidence warrants the application of the res ipsa loquitur doctrine, even though an instruction on such theory was not requested

1960The second instruction disapproved by appellant charged the jury: “The mere fact that an accident happened considered alone does not give rise to a legal inference that it was caused by negligence or that any party to this action was negligent.” While this instruction is proper in many eases (Shaw v. Pacific Greyhound Lines (1958), 50 Cal.2d 153, 156 [ 323 P.2d 391 ]), the Supreme Court has held its rendition erroneous in two situations: (1) where the uncontradieted evidence warrants the application of the res ipsa loquitur doctrine, even though an instruction on such theory was not requested

2026(Id., § 646, subd. (c) . . . .)” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826 (Brown).) 7 Assuming, for purposes of discussion, that the evidence was sufficient to warrant application of the res ipsa loquitur doctrine, appellant has not shown that Dr. Moza failed to introduce “‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence.’” (Brown, supra, 4 Cal.4th at p. 826 .) Appellant’s expert opined that Dr. Moza had committed malpractice.

2026(Id., § 646, subd. (c) . . . .)” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826 (Brown).) 7 Assuming, for purposes of discussion, that the evidence was sufficient to warrant application of the res ipsa loquitur doctrine, appellant has not shown that Dr. Moza failed to introduce “‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence.’” (Brown, supra, 4 Cal.4th at p. 826 .) Appellant’s expert opined that Dr. Moza had committed malpractice.

1985We find the evidence at trial did not warrant application of the res ipsa loquitur doctrine. (1a) Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. ( Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784 , 793 [ 28 Cal.Rptr. 277 ]; Dorswitt v. Wilson (1942) 51 Cal.App.2d 623 , 625 [ 125 P.2d 626 ].) It is based on a theory of "probability" where there is no direct evidence of defendant's conduct, ( Horner v. Barber (1964) 229 Cal.App.2d 829 , 832 [ 40 Cal.Rptr. 570 , 8 A.L.R.3d 966 ]; Fowler v. Seaton (1964) 61 Cal.2d 681 , 687 [ 39 Cal

1985We find the evidence at trial did not warrant application of the res ipsa loquitur doctrine. (1a) Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. ( Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784 , 793 [ 28 Cal.Rptr. 277 ]; Dorswitt v. Wilson (1942) 51 Cal.App.2d 623 , 625 [ 125 P.2d 626 ].) It is based on a theory of "probability" where there is no direct evidence of defendant's conduct, ( Horner v. Barber (1964) 229 Cal.App.2d 829 , 832 [ 40 Cal.Rptr. 570 , 8 A.L.R.3d 966 ]; Fowler v. Seaton (1964) 61 Cal.2d 681 , 687 [ 39 Cal

1974The sequence of events was unclear: Mrs. Shahinian screamed, the defendant turned sharply right, causing the stern to swing left; Shahinian attempted to dive under the boat; Shahinian was struck by the propeller. ( 59 Cal.2d at p. 558 .) He contended on appeal that the trial court erred in refusing to give the same res ipsa loquitur instruction requested in this case.

1973(See Springer v. Reimers (1970) 4 Cal. App.3d 325, 335 [ 84 Cal. Rptr. 486 ].) In the circumstances it cannot be said that the trial court's failure to give a res ipsa loquitur instruction was harmless. ( Shahinian v. McCormick, supra, 59 Cal.2d 554, 564 .) The judgment is reversed.

1965As we observed in Kramer v. Barnes, supra, 212 Cal. App.2d 440 , 448 "a collision in which a following motorist collides with the rear end of a vehicle ahead is some evidence of negligence on the part of the following motorist. ( Cartmill v. Arden Farms Co., 83 Cal. App.2d 787, 789 [ 189 P.2d 739 ]; Banes v. Dunger, 181 Cal. App.2d 276, 282 [ 5 Cal. Rptr. 278 ]; Gornstein v. Priver, supra, 64 Cal. App. 249, 255 ; Linde v. Emmick, 16 Cal. App.2d 676,682 [ 61 P.2d 338 ]; Wright v. Ponitz, 44 Cal. App.2d 215, 219 [ 112 P.2d 25 ]; Shannon v. Thomas, 57 Cal. App.2d 187, 194 [ 134 P.2d 522 ].)" [10]

1965As we observed in Kramer v. Barnes, supra, 212 Cal. App.2d 440 , 448 "a collision in which a following motorist collides with the rear end of a vehicle ahead is some evidence of negligence on the part of the following motorist. ( Cartmill v. Arden Farms Co., 83 Cal. App.2d 787, 789 [ 189 P.2d 739 ]; Banes v. Dunger, 181 Cal. App.2d 276, 282 [ 5 Cal. Rptr. 278 ]; Gornstein v. Priver, supra, 64 Cal. App. 249, 255 ; Linde v. Emmick, 16 Cal. App.2d 676,682 [ 61 P.2d 338 ]; Wright v. Ponitz, 44 Cal. App.2d 215, 219 [ 112 P.2d 25 ]; Shannon v. Thomas, 57 Cal. App.2d 187, 194 [ 134 P.2d 522 ].)" [10]

1938R 1462, 207 Pac. 378 ], and cases cited.) The foregoing statement of the rule in the cited ease was followed by the qualification that ‘where the explanation leaves it doubtful as to whether or not the ultimate cause of the injury is the negligence of the party charged, it is proper to instruct the jury as to the res ipsa loquitur doctrine’.” The court says further (citing numerous authorities from the decisions in this state) that: “Regardless of the effect of the foregoing qualification upon the general rule, it is clear that where the plaintiff in his complaint makes no general allegation o

1938R 1462, 207 Pac. 378 ], and cases cited.) The foregoing statement of the rule in the cited ease was followed by the qualification that ‘where the explanation leaves it doubtful as to whether or not the ultimate cause of the injury is the negligence of the party charged, it is proper to instruct the jury as to the res ipsa loquitur doctrine’.” The court says further (citing numerous authorities from the decisions in this state) that: “Regardless of the effect of the foregoing qualification upon the general rule, it is clear that where the plaintiff in his complaint makes no general allegation o

1965(Shaw v. Pacific Greyhound Lines, supra, 50 Cal.2d 153, 156-158 ; followed in: Guerra v. Handlery Hotels, Inc., supra, 53 Cal.2d 266 , 270-273 and recognized in: Amar v. Union Oil Co., supra, 166 Cal.App.2d 424, 427-429; Williams v. Cole, supra, 181 Cal.App.2d 70, 74 ; Houser v. Floyd, supra, 220 Cal.App.2d 778, 786 .) Where, as in this ease, the “mere fact” instruction is given and a proposed erroneous instruction on res ipsa loquitur is refused, there is, as pointed out in Shaw , no abuse of discretion in granting the plaintiff a new trial even though the appellate court “would probably have

1965(Shaw v. Pacific Greyhound Lines, supra, 50 Cal.2d 153, 156-158 ; followed in: Guerra v. Handlery Hotels, Inc., supra, 53 Cal.2d 266 , 270-273 and recognized in: Amar v. Union Oil Co., supra, 166 Cal.App.2d 424, 427-429; Williams v. Cole, supra, 181 Cal.App.2d 70, 74 ; Houser v. Floyd, supra, 220 Cal.App.2d 778, 786 .) Where, as in this ease, the “mere fact” instruction is given and a proposed erroneous instruction on res ipsa loquitur is refused, there is, as pointed out in Shaw , no abuse of discretion in granting the plaintiff a new trial even though the appellate court “would probably have

1965Where the uncontradicted evidence warrants the application of the doctrine of res ipsa loquitur it is error to give a “mere fact” instruction (Alarid v. Vanier (1958) 50 Cal.2d 617, 625 [ 327 P.2d 897 ]; followed in: Amar v. Union Oil Co. (1958) 166 Cal.App.2d 424, 427-429 [ 333 P.2d 449 ]; Persike v. Gray (1963) 215 Cal.App.2d 816, 820-822 [ 30 Cal.Rptr. 603 ]; and recognized in: Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 778-779 [ 327 P.2d 111 ]; Guerra v. Handlery Hotels, Inc. (1959) 53 Cal.2d 266, 270-273 [ 347 P.2d 674 ]; Williams v. Cole (1960) 181 Cal.App.2d 70, 74 [ 5 Cal.Rptr. 24

1965(Phillips v. Noble, supra, 50 Cal.2d 163, 166-168 ; followed in: Nevarov v. Caldwell, supra, 161 Cal.App.2d 762, 778-779 ; Williams v. Cole, supra, 181 Cal.App.2d 70, 74 ; Winningar v. Bales, supra, 194 Cal.App.2d 273, 277-278 ; and recognized in: Guerra v. Handlery Hotels, Inc., supra, 53 Cal.2d 266, 270-273 ; Banes v. Dunger, supra, 181 Cal.App.2d 276, 280-282 ; Persike v. Gray, supra, 215 Cal.App.2d 816, 820-822 ; Houser v. Floyd, supra, 220 Cal.App.2d 778, 786 .) In the latter situation, i.e., where there is evidence warranting the application of the doctrine of res ipsa loquitur but it is

2025(Hewlett- Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506 , 548 [“ ‘ “New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal.” ’ ”]; see Barrera v. De La Torre (1957) 48 Cal.2d 166, 170 [“[P]laintiffs did not request an instruction on the doctrine of res ipsa loquitur.

1973Rather these were all matters for the jury to weigh in the light of the required conditions, and an appropriate instruction concerning the doctrine would have been proper.” ( 48 Cal.2d at p. 170 .) In Barrera , however, no instruction on res ipsa loquitur, either conditional or absolute, as a matter of law, had been offered, and it was only necessary for the decision to determine that “there was evidence that two instrumentalities were involved in the accident, and it was questionable whether the conditions of the res ipsa loquitur doctrine were satisfied.” (Id., at p. 171.) The question of th

2014As our Supreme Court explained long ago, “since the res ipsa loquitur instruction permits the jury to infer negligence from the happening of the accident alone, there must be a basis either in common experience or expert testimony that when such accident occurs, it is more probably than not the result of negligence.” (Tomei v. Henning (1967) 67 Cal.2d 319, 322 .) Where, as here, the nature of cataract surgery and its potential complications is not a matter of common experience, “expert testimony is necessary to determine whether a probability of negligence appears from the happening of the acc

1982It need only afford reasonable support for an inference of negligence from the happening of the accident alone.” (Tomei v. Henning, supra, 67 Cal.2d 319, 322-323 .) Evidence necessary to form the basis for the application of the res ipsa loquitur doctrine need not establish the actual negligent procedures followed by defendant; it is sufficient if it supports an inference of negligence from the fact that the injury occurred.

1970Reprint 299.) [1] Our case is not within any of the recognized extensions of the doctrine. (6) We point out further that a res ipsa loquitur instruction is properly refused unless the evidence supports a preliminary determination by the court that "in the light of past experience" (1) the accident was of the type which ordinarily does not happen unless someone was negligent, and (2) it is more likely than not that the accident was caused by the defendant's negligence. ( Faulk v. Soberanes, 56 Cal.2d 466, 470 [ 14 Cal. Rptr. 545 , 363 P.2d 593 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436,

1970Reprint 299.) [1] Our case is not within any of the recognized extensions of the doctrine. (6) We point out further that a res ipsa loquitur instruction is properly refused unless the evidence supports a preliminary determination by the court that "in the light of past experience" (1) the accident was of the type which ordinarily does not happen unless someone was negligent, and (2) it is more likely than not that the accident was caused by the defendant's negligence. ( Faulk v. Soberanes, 56 Cal.2d 466, 470 [ 14 Cal. Rptr. 545 , 363 P.2d 593 ]; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436,

1966It also refused to give as requested by plaintiff qualified instructions on the doctrine of res ipsa loquitur in the form of BAJI No. 206-A (Rev.) and No. 206 (Rev.). 3 *184 According to the classic statement and as plaintiff’s first proposed instruction correctly declares, there are three conditions for the application of the doctrine of res ipsa loquitur: “ ‘(1) the accident must be of a ldnd which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due

1966It also refused to give as requested by plaintiff qualified instructions on the doctrine of res ipsa loquitur in the form of BAJI No. 206-A (Rev.) and No. 206 (Rev.). 3 *184 According to the classic statement and as plaintiff’s first proposed instruction correctly declares, there are three conditions for the application of the doctrine of res ipsa loquitur: “ ‘(1) the accident must be of a ldnd which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due

1969(See Guerra v. Handlery Hotels, Inc., 53 Cal.2d 266 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ].) As the court aptly stated in Getas v. Hook, 236 Cal.App.2d 705, 713 [ 46 Cal.Rptr. 249 ], with reference to the giving of a “mere fact of the accident” instruction in conjunction with the res ipsa loquitur instruction: “. . . where there is evidence warranting the application of the doctrine of res ipsa loquitur but it' is not applicable as a matter of law, it is recognized that where both instructions are given without an explanation, an order granting a new trial should be affirmed;. . . ” The order is a

1969(See Guerra v. Handlery Hotels, Inc., 53 Cal.2d 266 [ 1 Cal.Rptr. 330 , 347 P.2d 674 ].) As the court aptly stated in Getas v. Hook, 236 Cal.App.2d 705, 713 [ 46 Cal.Rptr. 249 ], with reference to the giving of a “mere fact of the accident” instruction in conjunction with the res ipsa loquitur instruction: “. . . where there is evidence warranting the application of the doctrine of res ipsa loquitur but it' is not applicable as a matter of law, it is recognized that where both instructions are given without an explanation, an order granting a new trial should be affirmed;. . . ” The order is a

1970(Cavero v. Franklin etc. Benevolent Soc. (1950) 36 Cal.2d 301, 309 [ 223 P.2d 471 ].) 6 In other medical malpractice cases, usually involving complex or rare medical procedures, *790 courts have found insufficient common knowledge among laymen to apply the doctrine of res ipsa loquitur, but have required expert testimony in order to establish the requisites of the doctrine. 7 In cases in which the physician or surgeon has injected a substance into the body, the courts have followed the test that if the routine medical procedure is relatively commonplace and simple, rather than special, unusual

1970(Cavero v. Franklin etc. Benevolent Soc. (1950) 36 Cal.2d 301, 309 [ 223 P.2d 471 ].) 6 In other medical malpractice cases, usually involving complex or rare medical procedures, *790 courts have found insufficient common knowledge among laymen to apply the doctrine of res ipsa loquitur, but have required expert testimony in order to establish the requisites of the doctrine. 7 In cases in which the physician or surgeon has injected a substance into the body, the courts have followed the test that if the routine medical procedure is relatively commonplace and simple, rather than special, unusual

1946As is said in Michener v. Hutton, 203 Cal. 604 , at page 608 [ 265 P. 238 , 59 A.L.R. 480 ], the doctrine of res ipsa loquitur applies “ ‘where the accident is such as, in the ordinary course of things, would not have happened if proper care had been used.’ ” That case further states that the doctrine does not change the rule as to the burden of proof, and that where the inference is properly invoked, all that is necessary is for the defendant to “adduce evidence to meet the plaintiff’s prima facie case.” (Italics added.) We conclude that the court did not err in giving to the jury the instruc

1946As is said in Michener v. Hutton, 203 Cal. 604 , at page 608 [ 265 P. 238 , 59 A.L.R. 480 ], the doctrine of res ipsa loquitur applies “ ‘where the accident is such as, in the ordinary course of things, would not have happened if proper care had been used.’ ” That case further states that the doctrine does not change the rule as to the burden of proof, and that where the inference is properly invoked, all that is necessary is for the defendant to “adduce evidence to meet the plaintiff’s prima facie case.” (Italics added.) We conclude that the court did not err in giving to the jury the instruc

1965As we observed in Kramer v. Barnes, supra, 212 Cal. App.2d 440 , 448 "a collision in which a following motorist collides with the rear end of a vehicle ahead is some evidence of negligence on the part of the following motorist. ( Cartmill v. Arden Farms Co., 83 Cal. App.2d 787, 789 [ 189 P.2d 739 ]; Banes v. Dunger, 181 Cal. App.2d 276, 282 [ 5 Cal. Rptr. 278 ]; Gornstein v. Priver, supra, 64 Cal. App. 249, 255 ; Linde v. Emmick, 16 Cal. App.2d 676,682 [ 61 P.2d 338 ]; Wright v. Ponitz, 44 Cal. App.2d 215, 219 [ 112 P.2d 25 ]; Shannon v. Thomas, 57 Cal. App.2d 187, 194 [ 134 P.2d 522 ].)" [10]

1965As we observed in Kramer v. Barnes, supra, 212 Cal. App.2d 440 , 448 "a collision in which a following motorist collides with the rear end of a vehicle ahead is some evidence of negligence on the part of the following motorist. ( Cartmill v. Arden Farms Co., 83 Cal. App.2d 787, 789 [ 189 P.2d 739 ]; Banes v. Dunger, 181 Cal. App.2d 276, 282 [ 5 Cal. Rptr. 278 ]; Gornstein v. Priver, supra, 64 Cal. App. 249, 255 ; Linde v. Emmick, 16 Cal. App.2d 676,682 [ 61 P.2d 338 ]; Wright v. Ponitz, 44 Cal. App.2d 215, 219 [ 112 P.2d 25 ]; Shannon v. Thomas, 57 Cal. App.2d 187, 194 [ 134 P.2d 522 ].)" [10]

2026“The ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 .) “The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery.” (Ibid.) As a general rule, “[r]es ipsa loquitu

1967(Davis v. Memorial Hospital, 58 Cal.2d 815, 817 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ]; Siverson v. Weber, 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ].) *409 [7] The doctrine of res ipsa loquitur is a doctrine fundamentally predicated upon inferences deducible from circumstantial evidence and the weight to be given to them.

1957Familiar examples of this procedúral device are the doctrine of res ipsa loquitur (see e.g., Ybarra v. Spangard (1944), 25 Cal.2d 486, 490 [ 154 P.2d 687 , 162 A.L.R. 1258 ] ; Dierman v. Providence Hospital (1947), 31 Cal.2d 290, 294 [ 188 P.2d 12 ]) and the use of special presumptions against a defendant in a criminal case where there is a rational *40 connection between a fact proved by the prosecution and a presumed fact which can best be explained by the defendant (see e.g., People v. Scott (1944), 24 Cal.2d 774, 779 [ 151 P.2d 517 ]).” To the foregoing could be added eases in which licens

1957Familiar examples of this procedúral device are the doctrine of res ipsa loquitur (see e.g., Ybarra v. Spangard (1944), 25 Cal.2d 486, 490 [ 154 P.2d 687 , 162 A.L.R. 1258 ] ; Dierman v. Providence Hospital (1947), 31 Cal.2d 290, 294 [ 188 P.2d 12 ]) and the use of special presumptions against a defendant in a criminal case where there is a rational *40 connection between a fact proved by the prosecution and a presumed fact which can best be explained by the defendant (see e.g., People v. Scott (1944), 24 Cal.2d 774, 779 [ 151 P.2d 517 ]).” To the foregoing could be added eases in which licens

2026“The ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001 .) “The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery.” (Ibid.) As a general rule, “[r]es ipsa loquitu

2026As our Supreme Court has explained, “[t]he ‘common knowledge’ exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson ‘is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’ [Citations.] The classic example, of course, is the X-ray revealing a scalpel left in the patient’s body following surgery. [Citation.] Otherwise, ‘“expert evidence is conclusive and cannot be disregarded.”

1982Res ipsa loquitur may apply where the cause of the injury is a mystery, if there is a *920 reasonable and logical inference that defendant was negligent, and that such negligence caused the injury.’ (Prosser on Torts (2d ed. 1955) § 42, p. 204.)” (Clark v. Gibbons, supra, 66 Cal.2d 399, 409 ; Quintal v. Laurel Grove Hospital, supra, 62 Cal.2d 154, 165 .) There was expert testimony that the most probable cause of plaintiff’s injury was external nerve compression either from the tourniquet used during surgery or from the application of tight bandages after the operation and the doctrine of res i

1967I concur in the judgment under the compulsion of Quintal v. Laurel Grove Hospital, 62 Cal.2d 154 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ], but deem it appropriate to set forth why the evidence in this case, as in Quintal, does not justify a res ipsa loquitur instruction.

2021Further, “[g]enerally, . . . the mere occurrence of a collision between two cars does not of itself present a circumstance for applying the res ipsa loquitur doctrine, though a collision may occur under circumstances warranting application of the doctrine. [Citations.] Circumstances where application of the res ipsa loquitur doctrine may be justified include rear-end collision cases where the rear car has collided with a stopped, stationary, or parked vehicle.” (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 212-213 , italics omitted; accord Cordova v. Ford (1966) 246 Cal.App.2d 180, 185 , see a

2016(Cordova v. Ford (1966) 246 Cal.App.2d 180, 185 .) Whether the doctrine of res ipsa loquitur applies—i.e., whether the evidence satisfies the three conditions—is a question of fact for the jury.