res ipsa loquitur doctrine in Louisiana

1966In Day v. National United States Radiator Corporation (1961) 241 La. 288, 299 , 128 So.2d 660 , the Supreme Court had this to' say about the doctrine' of res ipsa loquitur:: “[1-3] As this court has often said, the doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to he determined in each case at the conclusion of the trial.

1966In Day v. National United States Radiator Corporation (1961) 241 La. 288, 299 , 128 So.2d 660 , the Supreme Court had this to' say about the doctrine' of res ipsa loquitur:: “[1-3] As this court has often said, the doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to he determined in each case at the conclusion of the trial.

1961In Northwestern Mutual Fire Association v. Allain, 226 La. 788 , 77 So.2d 395, 397 , 49 A.L.R.2d 362 , a fire damage case similar to the instant case, our Supreme Court held: "Cases involving injuries inflicted on the plaintiff by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur.

1961In Northwestern Mutual Fire Association v. Allain, 226 La. 788 , 77 So.2d 395, 397 , 49 A.L.R.2d 362 , a fire damage case similar to the instant case, our Supreme Court held: "Cases involving injuries inflicted on the plaintiff by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur.

1986Hake v. Air Reduction Sales Co., 210 La. 810 , 28 So.2d 441 (1946).

1986Hake v. Air Reduction Sales Co., 210 La. 810 , 28 So.2d 441 (1946).

1982In McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973) the court said: “Res ipsa loquitur is a rule of circumstantial evidence.

1977The doctrine of res ipsa loquitur is applied when (1) The accident which occurred is a kind which ordinarily does not occur in the absence of negligence; (2) the accident was caused by an agency or instrumentality within actual or constructive control of the defendant; (3) there is no evidence tending to show the activity which resulted in the injury; and, (4) the use of the doctrine should be limited to “untoward or unusual occurrences during the time of medical supervision.” Calix v. Whitson, 306 So.2d 62 (La.App. 4th Cir. 1974); Haymark and Sons, Inc. v. Prendergast, 268 So.2d 110 (La.App.

1957The conclusions were susceptible of formulation only after the trial of the case which demonstrated (1) that neither party was chargeable with actual knowledge as to the cause or causes of the accident and (2) that defendant's automobile was the offending instrumentality." This court in the case of Weddle v. Phelan, La.App., 177 So. 407 , held that where plaintiff made general allegations of negligence against the defendants as well as specific allegations of negligence based on information and belief, the doctrine of res ipsa loquitur applies, citing 9 Blashfield's Cyclopedia of Automobile La

1947App. 603 , 131 So. 709 for there the plaintiff, in a case in which unquestionably the doctrine of res ipsa loquitur would have been applicable, made specific charges of negligence and failed to prove them.

1973The instances in which res ipsa loquitur are applicable were stated in Langlinais v. Geophysical Service, Inc., 237 La. 585 , 111 So.2d 781 , as follows: "It is well established in the Louisiana jurisprudence that the doctrine of res ipsa loquitur must be applied to a case if the accident which damaged plaintiff was caused by an agency or instrumentality within the actual or constructive control of the defendant, if the accident is of a kind which ordinarily does not occur in the absence of negligence, and if the evidence as to the true explanation of the accident is more readily accessible to

1973The instances in which res ipsa loquitur are applicable were stated in Langlinais v. Geophysical Service, Inc., 237 La. 585 , 111 So.2d 781 , as follows: "It is well established in the Louisiana jurisprudence that the doctrine of res ipsa loquitur must be applied to a case if the accident which damaged plaintiff was caused by an agency or instrumentality within the actual or constructive control of the defendant, if the accident is of a kind which ordinarily does not occur in the absence of negligence, and if the evidence as to the true explanation of the accident is more readily accessible to

1960Plunkett v. United Electric Service, supra; Gerald v. Standard Oil Co. of Louisiana, 204 La. 690 , 16 So.2d 233 ; Talbert v. Tyler, supra; Shields v. United Gas Pipe Line Company, supra. In order that the doctrine of res ipsa loquitur may apply, the plaintiff must first present sufficient proof of the existence of all the elements necessary to bring *401 the doctrine into operation, or to lay the foundation for the presumption or inference arising therefrom.

1960Plunkett v. United Electric Service, supra; Gerald v. Standard Oil Co. of Louisiana, 204 La. 690 , 16 So.2d 233 ; Talbert v. Tyler, supra; Shields v. United Gas Pipe Line Company, supra. In order that the doctrine of res ipsa loquitur may apply, the plaintiff must first present sufficient proof of the existence of all the elements necessary to bring *401 the doctrine into operation, or to lay the foundation for the presumption or inference arising therefrom.

1963In Shields v. United Gas Pipe Line Company, La.App., 110 So.2d 881 , recovery was denied to Plaintiff who, while working on defendant’s truck, was injured when an explosion occurred as he lifted a wire from the battery of the truck, the court clearly stating the res ipsa doctrine, viz.: “The doctrine of res ipsa loquitur is a rule of evidence peculiar to the law of negligence and is an exception or qualification of the general rule that negligence is not to be presumed but must be affirmatively established.

1960Plunkett v. United Electric Service, supra; Gerald v. Standard Oil Co. of Louisiana, 204 La. 690 , 16 So.2d 233 ; Talbert v. Tyler, supra; Shields v. United Gas Pipe Line Company, supra. In order that the doctrine of res ipsa loquitur may apply, the plaintiff must first present sufficient proof of the existence of all the elements necessary to bring *401 the doctrine into operation, or to lay the foundation for the presumption or inference arising therefrom.

1963R., Light & Power Company, 127 La. 309 , 53 So. 575 , Hake v. Air Reduction Sales Company, 210 La. 810 , 28 So.2d 441 and Plunkett v. United Electric Service, 214 La. 145 , 36 So.2d 704 , 3 A.L.R.2d 1437 .” All of the requirements for the application of res ipsa loquitur are present here.

1963R., Light & Power Company, 127 La. 309 , 53 So. 575 , Hake v. Air Reduction Sales Company, 210 La. 810 , 28 So.2d 441 and Plunkett v. United Electric Service, 214 La. 145 , 36 So.2d 704 , 3 A.L.R.2d 1437 .” All of the requirements for the application of res ipsa loquitur are present here.

1960Marquez v. Miller, La.App., 64 So.2d 526 ; Bonner v. Boudreaux, La.App., 8 So.2d 309 ; Armstrong v. New Orleans Public Service, Inc., La.App., 188 So. 189 ; Weddle v. Phelan, La.App., 177 So. 407 .’ “That statement seems to be a mis-statement of the doctrine of res ipsa loquitur.

1957The conclusions were susceptible of formulation only after the trial of the case which demonstrated (1) that neither party was chargeable with actual knowledge as to the cause or causes of the accident and (2) that defendant's automobile was the offending instrumentality." This court in the case of Weddle v. Phelan, La.App., 177 So. 407 , held that where plaintiff made general allegations of negligence against the defendants as well as specific allegations of negligence based on information and belief, the doctrine of res ipsa loquitur applies, citing 9 Blashfield's Cyclopedia of Automobile La

1988Sabella v. Baton Rouge General Hospital, 408 So.2d 382 (La.App. 1st Cir.1981). . . . . . [A]ll of the medical testimony adduced at trial indicated that plaintiff's injury could have occurred in the absence of negligence.

1985Congelton, 444 So.2d at 176 ; Sabella v. Baton Rouge General Hospital, 408 So.2d 382 (La.App. 1st Cir.1981).

1985Jones v. Shell Petroleum Corporation, 185 La. 1067 , 171 So. 447 [ (1936) ].

1942In the case of Jones v. Shell Petroleum Corporation, supra [ 185 La. 1067 , 171 So. 449 ], this court held that the doctrine of res ipsa loquitur applies “Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its man *398 agement or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care/’ the court reasoning that since the facts causing the injury were “

1951Their superior knowledge of causation is thus presumed and the law imposes certain responsibilities to be found in a statement of the doctrine of res ipsa loquitur, invoked herein by plaintiffs, the general application of which is clearly set out in our opinion in Mercer et ux. v. Tremont & Gulf Railway Company, La.App., 19 So.2d 270, 273 , as follows: “The doctrine of res ipsa loquitur is the doctrine invoked in aid of a plaintiff in instances where the occurrence of the accident itself serves to make out a prima facie case o'f negligence on the part of a defendant.

1948App., 19 So.2d 270 , 273, and from our opinion therein we quote as follows: "The doctrine of res ipsa loquitur is the doctrine invoked in aid of a plaintiff in instances where the occurrence of the accident itself serves to make out a prima facie case of negligence on the part of a defendant.

1974The *837 Court is not aware that the decision in Moak v. Link-Belt Company [La.App.], 229 So.2d 395 , stands for the proposition that in all instances where the doctrine of res ipsa loquitur is to be invoked all parties who might even remotely be connected with the matter be joined in one action.

1972There the trial court and the Court of Appeal ( 229 So.2d 395 ) concluded that the plaintiff employees of both companies had established the right to recover under a finding of negligence on the part of both companies only under the doctrine of res ipsa loquitur, an evidentiary rule which can be invoked only by certain parties under exceptional circumstances.

1974The general doctrine of res ipsa loquitur as applied by our jurisprudence is well stated in Bauer v. Columbia Casualty, 126 So.2d 398 (La.App. 2nd Cir. 1961) where the court held that the essentials of the doctrine were: (1) A superior knowledge on the part of the defendant as to the cause of the accident; (2) The absence of unavailability of direct evidence of negligence; (3) The existence of a sufficient duty on the part of the defendant to use due care; and (4) Proof of the accident or injury and defendant's relation thereo.

1965In Bauer v. Columbia Casualty Company, La.App., 126 So.2d 398 , the Court said: “In order that the doctrine of res ipsa loquitur may apply, the plaintiff must first present sufficient proof of the existence of all the elements necessary to bring the doctrine into operation, or to lay the foundation for the presumption or inference arising therefrom.

1973Lutheran Church of Good Shepherd *333 of Baton Rouge v. Canfield, La.App., 233 So.2d 331 .

1973Johnson v. Colp, 300 N.W. 791, 792 , 211 Minn. 245 ." In Lutheran Church of Good Shepherd v. Canfield, 233 So.2d 331 , this Court said: "It is settled in our law that the doctrine of res ipsa loquitur applies only when the instrumentality alleged to have caused the damage is in the actual or constructive control of the defendant, or where plaintiff has proved freedom of fault on the part of all through whose hands the instrumentality passed after leaving defendant" (Emphasis supplied.) Dr. Whitehouse expressed the opinion that the accelerated wearing of the right front brake assembly was due t