Res Ipsa Loquitur Need Not Be Pled and Should Have Been Applied.

Plaintiff received an electric shock when he stepped on a metal manhole cover while crossing a street.  Defendant was under contract with the city and was doing electrical work in the vicinity of the manhole.  In reversing the trial court’s grant of summary judgment to the defendant, the First Department discussed the concept of res ipsa loquitur:

“Res ipsa loquitur is not a separate theory of liability but merely ‘a common-sense application of the probative value of circumstantial evidence’ … . A plaintiff’s failure to specifically plead res ipsa loquitur does not constitute a bar to the invocation of res ipsa loquitur where the facts warrant its application … . The plaintiff’s failure here to plead the doctrine in his complaint does not render it unavailable to him … . …  To apply res ipsa loquitur, a plaintiff must establish that (1) the accident [is] of a kind that ordinarily does not occur in the absence of negligence; (2) the instrumentality or agency causing the accident [is] in the exclusive control of the defendants; and (3) the accident must not be due to any voluntary action or contribution by plaintiff ….’ .”  Smith v Consolidated Edison …, 9201, 110504/06, First Dept. 3-7-13