res ipsa loquitur doctrine in Florida

1984However, as McCrea itself acknowledged in finding no conflict with Frash v. Sarres, 60 So.2d 924 , "there is no need or room for the operation of any inference or presumption under the res ipsa loquitur doctrine where the evidence in the case reveals all of the facts and circumstances surrounding the occurrence in the suit and clearly establishes the precise cause of plaintiff's injury." South Florida Hospital Corp. v. McCrea, 118 So.2d at 30 .

1978The basis for our review is the determination by each court that the plaintiff in *1341 a controverted negligence case is entitled to the benefit of the inference which the doctrine of res ipsa loquitur provides, a proposition in direct conflict with our decision in Frash v. Sarres, 60 So.2d 924 (Fla. 1952). [2] In Frash the plaintiff was struck by the revolving blades of an overhead fan in defendant's restaurant while attempting to open a window shutter.

1977Appellant contends that he was entitled to a jury instruction on said doctrine under authority of the decisions in Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla. 1950), and Stanek v. Houston, 165 So.2d 825 (Fla.App. 1964).

1977Holman v. Ford Motor Co., 239 So.2d 40 (Fla.App. 1st, 1970); Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla. 1950). " Although the facts in this case were conflicting, the Boutwells were entitled to have the jury instructed on their theory of the case which included the doctrine of res ipsa loquitur. * * *" ( 335 So.2d at p. 292 ; emphasis added) In the same opinion Judge Mills further stated: "The court failed to instruct the jury that for it to infer that Auto Specialties was negligent it had to find that the instrumentality causing the injury to Boutwell was within the exclusive control

2017Elaborating on precedent, the McCrea Court stated that the universal rule is “that ‘there is no need or room for the operation of any inference or presumption under the res ipsa loquitur doctrine where the evidence ... reveals all of the facts and circumstances surrounding the occurrence in suit and clearly establishes the precise cause of plaintiffs injury.’” Id. at 30 .

2017Elaborating on precedent, the McCrea Court stated that the universal rule is “that ‘there is no need or room for the operation of any inference or presumption under the res ipsa loquitur doctrine where the evidence . . . reveals all of the facts and circumstances surrounding the occurrence in suit and clearly establishes the precise - 19 - cause of plaintiff’s injury.’ ” Id. at 30 .

1977This Court, in Holman v. Ford Motor Company, 239 So.2d 40 (Fla. 1st DCA 1970), on page 44 of that opinion, succinctly set forth the conditions for application of the doctrine as follows: "The next question raised by appellant is the trial court's refusal to instruct the jury on the doctrine of res ipsa loquitur.

1977Holman v. Ford Motor Co., 239 So.2d 40 (Fla.App. 1st, 1970); Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla. 1950). " Although the facts in this case were conflicting, the Boutwells were entitled to have the jury instructed on their theory of the case which included the doctrine of res ipsa loquitur. * * *" ( 335 So.2d at p. 292 ; emphasis added) In the same opinion Judge Mills further stated: "The court failed to instruct the jury that for it to infer that Auto Specialties was negligent it had to find that the instrumentality causing the injury to Boutwell was within the exclusive control

1956In Foster v. Thornton, 125 Fla. 699 , 170 So. 459, 461 , this Court said, "In the decision dated August 10, 1933, we held in effect that, in an action for damages resulting from an injury caused by negligent treatment of a patient by a doctor, the doctrine of res ipsa loquitur does not apply, that when applied to for treatment the doctor must determine at his peril whether or not the ailment complained of may be properly treated and the method to be followed in the treatment, but that error, unskillfulness, or negligence in diagnosis or treatment will not be proven by the fact that the patient

1956In Foster v. Thornton, 125 Fla. 699 , 170 So. 459, 461 , this Court said, "In the decision dated August 10, 1933, we held in effect that, in an action for damages resulting from an injury caused by negligent treatment of a patient by a doctor, the doctrine of res ipsa loquitur does not apply, that when applied to for treatment the doctor must determine at his peril whether or not the ailment complained of may be properly treated and the method to be followed in the treatment, but that error, unskillfulness, or negligence in diagnosis or treatment will not be proven by the fact that the patient

1990Relying on the California Supreme Court decision in Ybarra v. Spangard, 25 Cal.2d 486 , 154 P.2d 687 (1944), [11] the predecessor of Summers and Sindell, we concluded that in the unconscious patient situation the fairest course to be taken is to allow the plaintiff to go to the jury with the benefit of a res ipsa loquitur instruction, despite her inability to prove exclusive control. 486 So.2d at 533 .

1990Relying on the California Supreme Court decision in Ybarra v. Spangard, 25 Cal.2d 486 , 154 P.2d 687 (1944), [11] the predecessor of Summers and Sindell, we concluded that in the unconscious patient situation the fairest course to be taken is to allow the plaintiff to go to the jury with the benefit of a res ipsa loquitur instruction, despite her inability to prove exclusive control. 486 So.2d at 533 .

1977Appellant contends that he was entitled to a jury instruction on said doctrine under authority of the decisions in Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla. 1950), and Stanek v. Houston, 165 So.2d 825 (Fla.App. 1964).

1970Appellant contends that he was entitled to a jury instruction on said doctrine under authority of the decisions in Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla. 1950), and Stanek v. Houston, 165 So.2d 825 (Fla.App. 1964).

1975In reaching that conclusion, we quoted as follows from the opinion of the Supreme Court in Groves v. Florida Coca-Cola Bottling Company, Fla., 40 So.2d 128 : "The record shows that the appellant failed to submit any direct evidence of negligence on the part of Florida Coca-Cola Bottling Company.

1953"Some of the courts of the land have applied the rule res ipsa loquitur to cases in which exploding beverage bottles have been involved, and have held the bottler liable in damages even though the agency causing the injury *590 was not in his possession or control at the time of the accident. * * * But so far as we have been able to find from a study of the decisions, no court has ever held that recovery may be had in such cases, under the res ipsa loquitur doctrine, without an affirmative showing on the part of the plaintiff that after the bottle left the possession of the bottler it was not

1974See Payne v. Rome Coca Cola Bottling Co., supra; Auzenne v. Gulf Public Service Co., supra; Benkendorfer v. Garrett, supra; Stolle v. Anheuser-Busch, supra; Lanza v. De Ridder Coca Cola Bottling Co., La.

1944See Payne v. Rome Coca Cola Bottling *304 Co. supra; Auzenne v. Gulf Public Service Co., supra; Benkendorfer v. Garrett, supra; Stolle v. Anheuser-Busch, supra; Lanza v. DeRidder Coca Cola Bottling Co., (La.) 3 So. 2nd 217 ; Ruffin v. Coca Cola Bottling Co., 311 Mass. 514 , 42 N.E. 2nd 259.

1973It seemed, and seems, clear to the court that the instruction was justified, and indeed required, under the evidence concerning the asserted defect and the applicable law as applied in such cases as National Air Lines, Inc. v. Fleming, Fla. App. 1962, 141 So.2d 343 ; Williams v. Orange Memorial Hospital, Fla. App. 1967, 202 So.2d 859 ; South Florida Sanitarium & Hospital, Inc. v. Hodge, Fla. App. 1968, 215 So.2d 753 ; Holman v. Ford Motor Co., Fla. App. 1970, 239 So.2d 40 ; and Mapp v. Cedars of Lebanon Hospital, Fla. App. 1971, 249 So.2d 521 ; cf. Yarborough v. Ball U-Drive System, Fla. 1950,

1968On the showing that the process was under control of the hospital through its employees, the trial court was justified in submitting the case to the jury on the doctrine of res ipsa loquitur, West Coast Hospital Ass'n v. Webb, Fla. 1951, 52 So.2d 803 ; South Florida Hospital Corp. v. McCrea, Fla.App. 1959, 112 So.2d 393 ; South Florida Hospital Corp. v. McCrea, Fla. 1960, 118 So.2d 25 ; Williams v. Orange Memorial Ass'n, Fla.App. 1967, 202 So.2d 859 ; and since there was some evidence from which specific negligence through failure to maintain sterility reasonably could have been inferred, [1]

1946The case of Foster v. Thornton, 113 Fla. 600 , 152 So. 667 , held that the fatal result of a treatment by a physcian was not alone sufficient to bring the case within the res ipsa rule, but the case was finally decided on the question of the sufficiency of the circumstantial evidence introduced by plaintiff to prove the negligence alleged.

1940There is no doubt that the plaintiff suffered great pain from the treatment which was resorted to in the attempt to cure him, as well as from the ulcers which developed after the heat appliance had been removed, nor is there any doubt that he suffered financial loss from his inability, because of that condition, to follow his daily labors, but the fact that a blister did result while the treatment was being used and that ulcers later appeared on his diseased leg did not of themselves establish negligence on' the part of the defendant, for the doctrine of res ipsa loquitur does not apply. *589

1946The case of Foster v. Thornton, 113 Fla. 600 , 152 So. 667 , held that the fatal result of a treatment by a physcian was not alone sufficient to bring the case within the res ipsa rule, but the case was finally decided on the question of the sufficiency of the circumstantial evidence introduced by plaintiff to prove the negligence alleged.

1940There is no doubt that the plaintiff suffered great pain from the treatment which was resorted to in the attempt to cure him, as well as from the ulcers which developed after the heat appliance had been removed, nor is there any doubt that he suffered financial loss from his inability, because of that condition, to follow his daily labors, but the fact that a blister did result while the treatment was being used and that ulcers later appeared on his diseased leg did not of themselves establish negligence on' the part of the defendant, for the doctrine of res ipsa loquitur does not apply. *589

2017Differences Between Section 766.102(3)(b) and Common Law Res Ipsa Loquitur We conclude that the Fourth District made a foundational error when it stated that the statutory foreign-body presumption “is a codification of the doctrine of res ipsa loquitur in the medical negligence context.” Dockswell, 177 So. 3d at 272 .

2017We use “presumption” throughout to characterize section 766.102(3)(b), Florida Statutes, even though the statutory language provides for “prima facie evidence” because, as we explained in State v. Rolle, 560 So. 2d 1154 (Fla. 1990), -7- conclude that, unlike the common law doctrine of res ipsa where direct evidence of negligence may defeat its application, the only prerequisite to applying the foreign- body presumption and Instruction 402.4c is the “discovery of the presence of a foreign body” in the patient’s body. § 766.102(3)(b), Fla. Stat. We begin with an explanation of section 766.102(3)

2004In Bonventre v. Max, 229 A.D.2d 557 , 645 N.Y.S.2d 867 (1996), the facts were similar to those in this case and the court considered whether the defendant had exclusive control.

2004In Bonventre v. Max, 229 A.D.2d 557 , 645 N.Y.S.2d 867 (1996), the facts were similar to those in this case and the court considered whether the defendant had exclusive control.

1998In concluding that it was reversible error for the trial court to give the res ipsa loquitur instruction, the Second District determined that "McDougald failed to prove that this accident would not, in the ordinary course of events, have occurred without negligence by the defendants." McDougald, 698 So.2d at 1259 (citing Goodyear ).

1998The court explained that, "[t]he mere fact that an accident occurs does not support the application of the doctrine." Id.

1998This Court discussed the applicability of the doctrine of res ipsa loquitur in Marrero v. Goldsmith, 486 So.2d 530 (Fla.1986); City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261 (Fla.1982); and Goodyear Tire & Rubber Co. v. Hughes Supply, *785 Inc., 358 So.2d 1339, 1341 (Fla.1978).

1998This Court discussed the applicability of the doctrine of res ipsa loquitur in Marrero v. Goldsmith, 486 So.2d 530 (Fla.1986); City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261 (Fla.1982); and Goodyear Tire & Rubber Co. v. Hughes Supply, *785 Inc., 358 So.2d 1339, 1341 (Fla.1978).

1997Ploetz v. Big Discount Panel Center, Inc., 402 So.2d 64 (Fla. 4th DCA 1981) (instruction properly denied where plaintiff presented testimony that employees had improperly stacked panels of wood that fell on plaintiff); Benigno v. Cypress Community Hospital, Inc., 386 So.2d 1303 (Fla. 4th DCA 1980) (plaintiff, who provided substantial direct testimony that hospital employees were negligent in placing patient in a chair from which he fell, did not demonstrate lack of available evidence such as would entitle her to res ipsa loquitur instruction).