res ipsa loquitur doctrine in Michigan

2014Plaintiffs invoking the res ipsa loquitur doctrine must satisfy the following conditions: (1) the event must be of a kind 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 to any voluntary action or contribution on the part of the plaintiff; and (4) evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. ['Woodard v Custer, 473 Mich 1, 6-7 ; 702 NW2d 522 (2005) (quotation marks, bra

2014Plaintiffs invoking the res ipsa loquitur doctrine must satisfy the following conditions: (1) the event must be of a kind 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 to any voluntary action or contribution on the part of the plaintiff; and (4) evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. ['Woodard v Custer, 473 Mich 1, 6-7 ; 702 NW2d 522 (2005) (quotation marks, bra

1987(See observations of Black, J., in Higdon v Carlebach, 348 Mich 363, 374, 375 [ 83 NW2d 296 (1957)], quoting, also, Dean King of the Detroit College of Law, to the effect that "The Supreme *148 Court continues to say that the doctrine of res ipsa loquitur does not apply in Michigan and then proceeds to apply it.”) We are likewise aware of such cases as Pattinson v Coca-Cola Bottling Company of Port Huron, 333 Mich 253 [ 52 NW2d 688 (1952)], in which we approved the award of damages in a case involving an exploding soft-drink bottle, a situation in which courts even professing to apply res ipsa

1987(See observations of Black, J., in Higdon v Carlebach, 348 Mich 363, 374, 375 [ 83 NW2d 296 (1957)], quoting, also, Dean King of the Detroit College of Law, to the effect that "The Supreme *148 Court continues to say that the doctrine of res ipsa loquitur does not apply in Michigan and then proceeds to apply it.”) We are likewise aware of such cases as Pattinson v Coca-Cola Bottling Company of Port Huron, 333 Mich 253 [ 52 NW2d 688 (1952)], in which we approved the award of damages in a case involving an exploding soft-drink bottle, a situation in which courts even professing to apply res ipsa

1979The doctrine was well-articulated in Burghardt v Detroit United Ry, 206 Mich 545, 546-547 ; 173 NW 360 ; 5 ALR 1333 (1919), quoted in Gadde, supra, 121: " 'This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is mad

1979The doctrine was well-articulated in Burghardt v Detroit United Ry, 206 Mich 545, 546-547 ; 173 NW 360 ; 5 ALR 1333 (1919), quoted in Gadde, supra, 121: " 'This Court has not adopted the rule res ipsa loquitur; we have uniformly held that the happening of the accident alone is not evidence of negligence; and we have as uniformly held that negligence may be established by circumstantial evidence, and that where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inferences from established facts that at least a prima facie case is mad

2018Plaintiff cites the doctrine of res ipsa loquitur, asserting that this “Court may take judicial notice that falling down to such an extent as to die does not normally happen without some out- of-the ordinary reason.” “The doctrine of res ipsa loquitur permits an inference of negligence from circumstantial evidence when a party is otherwise unable to prove the occurrence of a negligent act.” Taylor v Kent Radiology, PC, 286 Mich App 490, 518 ; 780 NW2d 900 (2009).

2018Plaintiff cites the doctrine of res ipsa loquitur, asserting that this “Court may take judicial notice that falling down to such an extent as to die does not normally happen without some out- of-the ordinary reason.” “The doctrine of res ipsa loquitur permits an inference of negligence from circumstantial evidence when a party is otherwise unable to prove the occurrence of a negligent act.” Taylor v Kent Radiology, PC, 286 Mich App 490, 518 ; 780 NW2d 900 (2009).

2017“It is the duty of the Supreme Court to overrule or modify caselaw if and when it becomes obsolete, and the Court of Appeals and the lower courts are bound by the precedent established by the Supreme Court until it takes such action.” People v Metamora Water Serv, Inc, 276 Mich App 376, 387-388 ; 741 NW2d 61 (2007).

2017“It is the duty of the Supreme Court to overrule or modify caselaw if and when it becomes obsolete, and the Court of Appeals and the lower courts are bound by the precedent established by the Supreme Court until it takes such action.” People v Metamora Water Serv, Inc, 276 Mich App 376, 387-388 ; 741 NW2d 61 (2007).

2015In Ybarra, the court noted that the number of defendants alone does not determine whether the doctrine of res ipsa loquitur applies because: “Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard.” Ybarra, 154 P2d at 690 .

2015It should be enough that plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is a clear a case of identification of the instrumentality as plaintiff may ever be able to make. [Ybarra, 154 P2d at 690-691 .] In this case, plaintiff has identified an instrumentality—i.e. a compression-type injury of the nerve that may have caused her injury.

1987Loebig’s Guardian v Coca-Cola Bottling Co, 259 Ky 124 ( 81 SW2d 910 ) [1935].

1958Loebig’s Guardian v. Coca-Cola Bottling Co., 259 Ky 124 ( 81 SW2d 910 ).

1987The discussion by Justice Smith in his minority opinion in Indiana Lumbermens Mutual Ins Co v Matthew Stores, Inc, 349 Mich 441, 452-455 ; 84 NW2d 755 (1957), provides an excellent summary of the controversy.

1987The discussion by Justice Smith in his minority opinion in Indiana Lumbermens Mutual Ins Co v Matthew Stores, Inc, 349 Mich 441, 452-455 ; 84 NW2d 755 (1957), provides an excellent summary of the controversy.

2019Pugno, 326 Mich App at 19 ; Hasselbach, 209 Mich App at 480 .

2018Fuller v. Wurzburg Dry Goods Co. , 192 Mich. 447 , 448, 158 N.W. 1026 (1916).

2018Fuller v. Wurzburg Dry Goods Co. , 192 Mich. 447 , 448, 158 N.W. 1026 (1916).

2016In PGA Tour, Inc v Martin, 532 US 661 , 683 n 39; 121 S Ct 1879 ; 149 L Ed 2d 904 (2001), the United States Supreme Court noted that the first recorded rules of golf were published in 1744, more than 200 years before the Gillespie opinion was issued. -9- using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.

2016In PGA Tour, Inc v Martin, 532 US 661 , 683 n 39; 121 S Ct 1879 ; 149 L Ed 2d 904 (2001), the United States Supreme Court noted that the first recorded rules of golf were published in 1744, more than 200 years before the Gillespie opinion was issued. -9- using clubs to cause a ball to progress from the teeing ground to a hole some distance away with as few strokes as possible.

2016Swanson v Port Huron Hosp (On Remand), 290 Mich App 167, 185 ; 800 NW2d 101 (2010) (“Since this type of injury is a known complication of laparoscopic surgery, and since this type of injury can occur without any negligence on the part of the treating physician, it is axiomatic that instructing the jury on the doctrine of res ipsa loquitur was an abuse of discretion.”).

2014The general rule is that a 2 See, e.g., Zdrojewski v Murphy, 254 Mich App 50, 60-61 ; 657 NW2d 721 (2002); Niemi v Upper Peninsula Orthopedic Assoc, Ltd, 173 Mich App 326 , 329 n 1; 433 NW2d 363 (1988). -3- plaintiff may invoke the doctrine of res ipsa loquitur even if he or she has not pleaded it. 65A CJS, § 854, p 714.

2014The general rule is that a 2 See, e.g., Zdrojewski v Murphy, 254 Mich App 50, 60-61 ; 657 NW2d 721 (2002); Niemi v Upper Peninsula Orthopedic Assoc, Ltd, 173 Mich App 326 , 329 n 1; 433 NW2d 363 (1988). -3- plaintiff may invoke the doctrine of res ipsa loquitur even if he or she has not pleaded it. 65A CJS, § 854, p 714.

2014The general rule is that a 2 See, e.g., Zdrojewski v Murphy, 254 Mich App 50, 60-61 ; 657 NW2d 721 (2002); Niemi v Upper Peninsula Orthopedic Assoc, Ltd, 173 Mich App 326 , 329 n 1; 433 NW2d 363 (1988). -3- plaintiff may invoke the doctrine of res ipsa loquitur even if he or she has not pleaded it. 65A CJS, § 854, p 714.

2014The general rule is that a 2 See, e.g., Zdrojewski v Murphy, 254 Mich App 50, 60-61 ; 657 NW2d 721 (2002); Niemi v Upper Peninsula Orthopedic Assoc, Ltd, 173 Mich App 326 , 329 n 1; 433 NW2d 363 (1988). -3- plaintiff may invoke the doctrine of res ipsa loquitur even if he or she has not pleaded it. 65A CJS, § 854, p 714.

2009Under Michigan law, an “inference” does not equate with a “presumption.” In Ward v Consolidated Rail Corp, 472 Mich 77, 84 ; 693 NW2d 366 (2005), our Supreme Court observed that the “trial court’s instructions to the jury blurred the distinction between pre *185 sumptions and inferences and were not tailored to the evidence submitted by the parties.” Black’s Law Dictionary (8th ed) defines an “inference” as a “conclusion reached by considering other facts and deducing a logical consequence from them.” According to MRE 301, however, in a civil case “a presumption imposes on the party against wh

2009Under Michigan law, an “inference” does not equate with a “presumption.” In Ward v Consolidated Rail Corp, 472 Mich 77, 84 ; 693 NW2d 366 (2005), our Supreme Court observed that the “trial court’s instructions to the jury blurred the distinction between pre *185 sumptions and inferences and were not tailored to the evidence submitted by the parties.” Black’s Law Dictionary (8th ed) defines an “inference” as a “conclusion reached by considering other facts and deducing a logical consequence from them.” According to MRE 301, however, in a civil case “a presumption imposes on the party against wh

1994Thomas v McPherson Community Health Center, 155 Mich App 700, 705 ; 400 NW2d 629 (1986).

1994Thomas v McPherson Community Health Center, 155 Mich App 700, 705 ; 400 NW2d 629 (1986).

1984See Ybarra v Spangard, 25 Cal 2d 486; 154 P2d 687 (1944); *334 Anderson v Somberg, 67 NJ 291, 305; 338 A2d 1 (1975).

1981See, also, Lipsitz v Schechter, 377 Mich 685 ; 142 NW2d 1 (1966), Holmes v Gargaro Co, 368 Mich *804 589; 118 NW2d 697 (1962), and Comment Note, 141 ALR 1016 , 1017, an annotation which distinguishes Michigan’s position from states recognizing the pure doctrine of res ipsa loquitur.

1979This latter rule is sometimes referred to as the Michigan version of the doctrine of res ipsa loquitur, Gadde v Michigan Consolidated Gas Co, 377 Mich 117 ; 139 NW2d 722 (1966), Weisenberg v Village of Beulah, 352 Mich 172 ; 89 NW2d 490 (1958).

1979This latter rule is sometimes referred to as the Michigan version of the doctrine of res ipsa loquitur, Gadde v Michigan Consolidated Gas Co, 377 Mich 117 ; 139 NW2d 722 (1966), Weisenberg v Village of Beulah, 352 Mich 172 ; 89 NW2d 490 (1958).