Tom Bonacci brought his Jeep to Brewer Service Station to investigate a strange noise the vehicle was making. The Jeep was raised up on an automobile lift so that Brewer employee Paul Gebing could check out the underside of the vehicle. The vehicle fell off the lift, injuring Bonacci and Gebing. Bonacci sued for damages pursuant to the doctrine of res ipsa loquitur. To support this claim, Bonacci argued that Brewer’s principal, Steven Presti, admitted in his deposition that the accident could not have occurred except for negligence and that Bonacci’s presence in the vicinity of the lift could not have led to the occurrence.
In opposition, Brewer argued that Bonacci should not have been standing in the bay near the lift because there is signage advising customers that they are not permitted to enter the area. Bonacci countered by claiming that Gebing invited him to place himself under the vehicle and point out where he thought the problem with the vehicle was located. Shortly after moving under the vehicle, the vehicle fell from the lift.
JUSTICE LAWRENCE H. ECKER As to plaintiff’s assertion that this is an appropriate case for the application of res ipsa loquitur, the court is aware that the granting of summary judgment on this basis is to be rarely exercised. Morejon v Rais Construction Company, 7 NY3d 203 [2006]. The granting of the motion would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable. … In Corcoran v Banner Super Mkt., … cited in Morejon, the test to be applied in order to determine whether res ipsa loquitur applies, is (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 (internal citations omitted). Id.
at 209.
Here, applying the three-prong test of Morejon, supra, given common experience, it would seem that the Jeep falling from the lift, as opposed to the lift itself being defective, occurred due to someone’s negligence. This is admitted by the opinion of Presti, defendant’s principal, who testified as to the licenses issued to his corporation and to him personally by the State of New York, and the fact he has operated the service station for 33 years. His experience bespeaks that his opinion is more than mere speculation. As such, the court finds his opinion is in the nature of an admission. As to control of the instrumentality, there is no doubt that the lift, together with the placement of the Jeep on it, and its elevation, was solely within the control of defendant’s employee, Gebing, who was working within the scope of his employment. Lastly, there is no conduct on the part of plaintiff, other than his accepting the invitation by Gebing, which is not rebutted, to join him under the elevated vehicle, from which it can be argued that plaintiff contributed to the accident.
The court finds that this is one of those rare cases recognized by Morejon, supra, when res ipsa loquitur can be applied in order to determine whether plaintiff is entitled to summary judgment as to liability. The court’s research reveals that the issue arises primarily in medical malpractice cases … and that this analysis requires a careful case by case examination of the facts. However, as recognized by Morejon, supra, at footnote 8, there have been non-medical malpractice cases where the doctrine has been applied to justify the granting of the motion for partial summary judgment. Harmon v United States Shoe Corp., … (summary judgment is properly granted in a res ipsa loquitur case where defendant has totally failed to rebut the inescapable inference of negligence); cited by Mejia v New York City Transit Authority, 291 AD2d 225 [1st Dept 2002] (res ipsa loquitur was applicable on summary judgment motion where pedestrian was struck by a piece of ceiling while waiting for a train on a subway platform), cited by Flossos v Waterside Redevelopment Co., … (genuine issue of material fact existed as to whether doctrine of res ipsa loquitur applied, precluding summary judgment for owner and managers of an apartment building on painter’s negligence claim, seeking to recover damages for injuries he sustained when a piece of ceiling he was painting fell down on him, propelling him and ladder on which he was standing to the floor).
Here, the court finds that this is a case where the inference of res ipsa loquitur should apply as the evidence of defendant’s negligence is inescapable.
ORDERED that plaintiff’s motion for partial summary judgment is GRANTED.
CRITICAL THINKING:
What evidence do you believe the defendant could have presented that might have prevented the plaintiffs from successfully using the doctrine of res ipsa loquitur? Why would this evidence have helped them?
ETHICAL DECISION MAKING:
Which stakeholders’ interests were furthered by the use of res ipsa loquitur?