Res Ipsa Loquitur Is Rarely a Basis for Summary Judgment/Questions of Fact About Defendant’s Control of the Instrumentality Causing Injury Precluded Summary Judgment.

A homeowner was sued by a utility employee who was injured when a staircase leading to the homeowner’s basement collapsed.  At the deposition the homeowner testified the house was new when he bought it and he had made no alterations to the stairway.  The plaintiff was granted summary judgment pursuant to the doctrine of res ipsa loquitur.  The Second Department reversed because it could not be ruled out that the builder of the home, and not the defendant, was negligent.  It was not demonstrated, therefore, that the accident was caused by an instrumentality in the exclusive control of the defendant.  The Court wrote:

The plaintiff’s reliance on the doctrine of res ipsa loquitur was insufficient to establish his prima facie entitlement to judgment as a matter of law. A plaintiff must establish the following in order for the doctrine to apply: “(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; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … . Only in the rarest cases will a plaintiff be awarded summary judgment or judgment as a matter of law in the course of a trial by relying upon the doctrine of res ipsa loquitur … .  Bunting v Haynes, 2013 NY Slip Op 01521, 2012-01717, Index No 25382/10, Second Dept. 3-13-13