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CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE.

The Second Department determined plaintiffs’ cross-motion for summary judgment, based upon the doctrine of res ipsa loquitur, was properly denied in this slip and fall case. Plaintiffs alleged defendant operated a sprinkler in December which caused the icy condition. The court explained the res ipsa loquitur doctrine can rarely be applied as a matter of law. Here the plaintiffs were unable to show that the injured plaintiff did not take a voluntary action which contributed to her injury:

In support of that branch of their cross motion which was for summary judgment on the issue of liability, the plaintiffs relied on the doctrine of res ipsa loquitur. To rely on that doctrine, a plaintiff must show that “(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident … . Since the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent, res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment, even if the plaintiff’s circumstantial evidence is unrefuted … . “[O]nly in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment” … . “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” … . Giantomaso v T. Weiss Realty Corp., 2016 NY Slip Op 05972, 2nd Dept 9-14-16

NEGLIGENCE (CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)/EVIDENCE (NEGLIGENCE, CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)/RES IPSA LOQUITUR (SUMMARY JUDGMENT, CRITERIA FOR SUMMARY JUDGMENT BASED UPON RES IPSA LOQUITUR EXPLAINED, NOT MET HERE)

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