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Res Ipsa Loquitur Doctrine Re: Shard of Wood Ingested by Plaintiff Allowed Case to Survive Summary Judgment

In reversing Supreme Court, the Third Department determined the doctrine of res ipsa loquitur sufficiently raised a question of fact about whether a shard of wood, which was swallowed by plaintiff, was negligently present in food prepared by defendant (Cipriani):

Res ipsa loquitur is neither a theory of liability nor a presumption of liability, but instead is simply a permitted inference – that the trier of fact may accept or reject – reflecting a “common-sense application of the probative value of circumstantial evidence” … .  Criteria for res ipsa loquitur to apply are that “(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; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … .  The parties dispute the exclusive control element and, to establish that element, plaintiffs were “not obligated to eliminate every alternative explanation for the event, but only to demonstrate that the likelihood of causes other than the defendant[s’] negligence is so reduced that the greater probability lies at defendant[s’] door, rendering it more likely than not that the injury was caused by defendant[s’] negligence” … .

Here, the event occurred at a banquet hall operated by Cipriani.  Cipriani prepared and provided all of the food. Attendees were not permitted to bring food onto the premises. Individuals undisputedly under Cipriani’s control (pursuant to a contractual arrangement) acted as captains, servers and bartenders.  Cipriani thus exclusively prepared, provided and served the food.  Although the shard possibly could have been present when the ingredients for food were purchased from suppliers, it was not so small as to have been likely concealed and thus not visible upon careful preparation (cf. Restatement [Second] of Torts § 328D, Comment e, Illustration 2).  … There is sufficient proof under these circumstances to find ample control by defendants for purposes of res ipsa loquitur. Brumberg v Cipriani USA Inc, 2013 NY Slip Op 06759, 3rd Dept 10-17-13

 

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