Foundation for application of res ipsa loquitur established where car owner drove two miles following a tire rotation; this is the “rare” or “exceptional” case where summary judgment was warranted

Bicchetti v. Atlantic Toyota, 2023 NY Slip Op 03219 (2d Dep’t 2023)

On January 23, 2014, the defendants performed a multipoint inspection and tire rotation on the plaintiffs’ vehicle, which required the tires to be removed and reattached. Upon receipt of the vehicle after the service was completed, the plaintiff Kathleen Bicchetti (hereinafter the injured plaintiff) departed from the defendants’ property in the vehicle and drove along Sunrise Highway, at which point the right rear tire detached from the vehicle, causing the vehicle to crash into a snowbank. The odometer readings showed that the vehicle had traveled approximately two miles from the defendants’ property.

In 2016, the plaintiffs commenced separate actions, which were subsequently consolidated, against the defendants, alleging that the defendants negligently serviced and replaced the tire on the vehicle and proximately caused the accident. Following depositions of the injured plaintiff and a representative of the defendants, the plaintiffs moved for summary judgment on the issue of liability under the doctrine of res ipsa loquitur. In opposition, the defendants contended, inter alia, that the plaintiffs failed to establish the defendants’ exclusive control of the vehicle. By order dated June 1, 2020, the Supreme Court denied the plaintiffs’ motion. The plaintiffs appeal.

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: “[f]irst, the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Kambat v St. Francis Hosp., 89 NY2d 489, 494, 678 N.E.2d 456, 655 N.Y.S.2d 844; see Berlich v Maimonides Med. Ctr., 208 AD3d 1148, 1149, 175 N.Y.S.3d 95; Marinaro v Reynolds, 152 AD3d 659, 59 N.Y.S.3d 87). Regarding the second element, exclusive control is not a rigid rule and has been applied in circumstances when “the accident occurred after the instrumentality left the defendant’s control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227, 492 N.E.2d 1200, 501 N.Y.S.2d 784; see Marinaro v Reynolds, 152 AD3d at 659). The plaintiff does not need to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants’ conduct is more probably the cause (see Dermatossian v New York City Tr. Auth., 67 NY2d at 227; Finocchio v Crest Hollow Club at Woodbury, 184 AD2d 491, 492, 584 N.Y.S.2d 201). The plaintiff must show that the defendant’s control was sufficiently exclusive to fairly rule out some other agency causing the purported defect (see Bonventre v Max, 229 AD2d 557, 558, 645 N.Y.S.2d 867; Raimondi v New York Racing Assn, 213 AD2d 708, 709; see also Matsur v New York City Tr. Auth., 66 AD3d 848, 888 N.Y.S.2d 531). Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitur permits the factfinder to infer negligence (see Berlich v Maimonides Med. Ctr., 208 AD3d at 1149; Smith v Sommer, 189 AD3d 906, 908, 137 N.Y.S.3d 99).

Here, the plaintiffs established, prima facie, that a tire detachment, such as the one at issue here, does not occur in the absence of negligence (see Pollock v Rapid Indus. Plastics Co., 113 AD2d 520, 524, 497 N.Y.S.2d 45). Furthermore, the plaintiffs established, prima facie, that the vehicle was in the defendants’ exclusive control at the time of the alleged act of negligence (see Dermatossian v New York City Tr. Auth., 67 NY2d at 227; Marinaro v Reynolds, 152 AD3d at 659) and that the plaintiffs did not contribute to the event (see Corcoran v Banner Super Mkt., 19 NY2d 425, 430, 227 N.E.2d 304, 280 N.Y.S.2d 385; see also DiGiacomo v Cabrini Med. Ctr., 21 AD3d 1052, 803 N.Y.S.2d 587). In opposition to the plaintiffs’ prima facie showing, the defendants failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595; Pierre v Demoura, 148 AD3d 736, 737, 48 N.Y.S.3d 260; Morales v Amar, 145 AD3d 1000, 1002, 44 N.Y.S.3d 184).

On this record, “the plaintiff[s’] circumstantial proof is so convincing and the defendant[s’] response so weak that the inference of defendant[s’] negligence is inescapable” (Morejon v Rais Constr. Co., 7 NY3d 203, 209, 851 N.E.2d 1143, 818 N.Y.S.2d 792). Accordingly, since this is the type of “rare” and “exceptional” res ipsa loquitur case “in which no facts are left for determination” (id. at 209, 212), the Supreme Court should have granted the plaintiffs’ motion for summary judgment on the issue of liability.

Decision Date: June 14, 2023

Practical Practice Point

Res ipsa loquitur is a form of circumstantial evidence, which permits an inference of negligence to be drawn when three foundation elements are established.

The elements:

1. the event must be of a kind that 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; and
3. it must not have been due to any voluntary action or contribution on the part of the plaintiff.

In Morejon v. Rais Constr. Co., 6 N.Y.3d 172, 811 N.Y.S.2d 302 (2006), the Court of Appeals framed the issue before it:

On this appeal, we address defendants’ assertion–supported by the Appellate Division–that circumstantial evidence (res ipsa) may never justify summary judgment for the plaintiff. We conclude that, while there is no rule or policy absolutely foreclosing that possibility, it should be a rare event. Here, open questions of fact remain.

The Court took the opportunity to review the origin and development of the doctrine of res ipsa loquitor, and explained that courts have mistakenly referred to res ipsa as a presumption as opposed to an inference:

In our own taxonomy in other contexts, we speak of “presumptions of law” (Buccini v Paterno Const. Co., 253 N.Y. 256, 259, 170 N.E. 910 [1930]), “presumptions of fact” (Myers v Bartholomew, 91 N.Y.2d 630, 636, 697 N.E.2d 160, 674 N.Y.S.2d 259 [1998]), “conclusive presumptions” (Cornell Univ. v Bagnardi, 68 N.Y.2d 583, 594-95, 503 N.E.2d 509, 510 N.Y.S.2d 861 [1986]), “rebuttable presumptions” (Williams v City of New York, 2 N.Y.3d 352, 366, 811 N.E.2d 1103, 779 N.Y.S.2d 449 [2004]), “conflicting presumptions” (Palmer v Palmer, 162 N.Y. 130, 133, 56 N.E. 501 [1900]) and “statutory presumptions” (DeJesus v DeJesus, 90 N.Y.2d 643, 652, 687 N.E.2d 1319, 665 N.Y.S.2d 36 [1997]). Perhaps even more unsettling, we also hear of “mandatory inferences” (West v Nabors Drilling USA, Inc, 330 F.3d 379 [5th Cir 2003]), “presumptive inferences” (Hines v New York City Housing Auth., 67 A.D.2d 1000, 1001, 413 N.Y.S.2d 733 [2d Dept 1979]) and “permissive presumptions” (County Court v Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979]). In (United States v Gainey, 380 U.S. 63, 78, 85 S. Ct. 754, 13 L. Ed. 2d 658 [1965]), Justice Black stated that “in its simplest form a presumption is an inference permitted or required by law . . . ”

In most of the post-Foltis res ipsa loquitur cases cited, the courts would likely have reached the same result whether by way of inference or presumption or some other word or phrase. We adhere, nevertheless, to our jurisprudence, in which we denominate res ipsa loquitur as creating an inference (as defined in this writing and our case law [e.g. Kambat, supra]).

The dizzying array of formulations (from mandatory inferences to permissive presumptions), however, suggests that things would be far less complicated if we viewed the res ipsa loquitur/summary judgment issue without undue emphasis on labels and pigeon holes.  Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence.   Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence. If that evidence presents a question of fact as to the defendant’s liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial. If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law. Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination. This is not such a case. Here, there are material questions of fact for trial.

The Court concluded “[w]e stand by those principles, and in the context of this appeal, reaffirm that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That 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.”

And Bicchetti was one of those “rarest” of cases.