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Failure to Plead Res Ipsa Loquitur Does Not Preclude Application of Theory.

“Since the [res ipsa loquitur] doctrine merely permits an inference arising from the evidence in a negligence case, the plaintiff’s failure to plead res ipsa loquitur does not foreclose its application on summary judgment or at trial.”  Wicks vs Leemilt’s Petroleum, Inc., 2011-01891, Index No. 1843/08 Second Dept. 2-20-13

 

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