AMI 609 Res Ipsa Loquitur
Ark. Model Jury Instr., Civil AMI 609
Arkansas Model Jury Instructions-Civil
November 2022 Update
Chapter 6. Specific Factors Affecting Negligence and Defenses
AMI 609 Res Ipsa Loquitur
With respect to the question of whether (defendant) was negligent, (plaintiff) has the burden of proving each of the following [two][three] essential propositions:
First: That [the alleged injury][the death][or][(the alleged) property damage] was attributable to (name of instrumentality) which [was under the exclusive control of (defendant).] [had been under the exclusive control of (defendant) without any opportunity for the (contents)(character) of the (instrumentality) to have been changed after leaving the possession of (defendant).] [and]
Second: That in the normal course of events, no [injury][death][or][property damage] would have occurred if (defendant) had used [ordinary care][the highest degree of care] while the (instrumentality) was under its exclusive control.
[And third: That (defendant) in its control of the (instrumentality) owed a duty to (plaintiff) to use (ordinary care)(the highest degree of care).]
If you find that each of these [two][three] propositions has been proved, then you are permitted, but not required, to infer that (defendant) was negligent.
[But if, on the other hand, you find that [either][any] of these propositions has not been proved, or if you find that (defendant) used [ordinary care][the highest degree of care] in its control of the (instrumentality), then your verdict should be for (defendant).]
NOTE ON USE
Do not use the final bracketed paragraph when the case is submitted on interrogatories.
Use the third proposition only if there is a question of fact whether the defendant owed a duty of ordinary care (e.g., was the plaintiff an invitee or a trespasser).
Use the last bracketed clause in the first proposition if the instrumentality was not under the defendant's control at the time of the injury, but there is no rational ground for imputing negligence to others with respect to the instrumentality after it left the defendant's control.
When res ipsa loquitur is submitted along with specific acts of negligence, use AMI 610.
For discussions of circumstances when res ipsa loquitur is applicable, see Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004) (toilet seat); Megee v. Reed, 252 Ark. 1016, 482 S.W.2d 832 (1972) (unexplained fire); Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972) (fall from hospital bed); Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74 (1970) (horse on highway); and Royal Crown Bottling Co. v. Terry, 246 Ark. 128, 437 S.W.2d 474 (1969) (exploding bottle).
Under appropriate circumstances, res ipsa loquitur is applicable in medical malpractice cases. Myers v. Cooper Clinic, P.A., 2011 Ark. App. 435, at 10 (doctrine inapplicable where defendant presented evidence to the contrary); Schmidt v. Gibbs, 305 Ark. 383, 807 S.W.2d 928 (1991) (same).
Generally, the res ipsa loquitur rule applies only when the instrumentality was under the exclusive control and management of the defendant at the time of the injury. Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S.W.2d 885 (1964); Arkansas Power & Light Co. v. Butterworth, 222 Ark. 67, 258 S.W.2d 36 (1953). However, this prerequisite is satisfied if there was no opportunity for the content or character of the instrumentality to have been changed after leaving the defendant's possession. Coca–Cola Bottling Co. of Fort Smith, Ark. v. Hicks, 215 Ark. 803, 223 S.W.2d 762 (1949).
Once the plaintiff has established the elements of a res ipsa loquitur case, the burden of going forward with the evidence shifts to the defendant. However, the primary burden of proof or risk of non-persuasion remains with the plaintiff throughout the case. Coca–Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S.W.2d 15 (1951).
If the evidence clearly shows the precise cause of the mishap, then there is no occasion for the application of the doctrine. Lambert v. Markley, 255 Ark. 851, 503 S.W.2d 162 (1973).
For a discussion of the responsibility of two defendants (bottler of soft drinks and grocery store where bottler maintained and serviced a display) in control of the same instrumentality, see Stalter v. Coca–Cola Bottling Co. of Arkansas, 282 Ark. 443, 669 S.W.2d 460 (1984).
The doctrine of res ipsa loquitur is not applicable to slip and fall cases. Alexander v. Town and Country Discount Foods, Inc., 316 Ark. 446, 872 S.W.2d 390 (1994).
When there is no substantial evidence of negligence on the plaintiff's part and the issue of comparative fault should not be presented to the jury, a res ipsa loquitur instruction may be appropriate under the circumstances of the case. Marx v. Huron Little Rock, 88 Ark. App. 284, 198 S.W.3d 127 (2004).
For a discussion of other instances when res ipsa loquitur is not applicable, see National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996), mandate amended, 325 Ark. 31, 922 S.W.2d 717 (1996); Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891 (1995); Phillips v. Elwood Freeman Co., 294 Ark. 548, 745 S.W.2d 127 (1988).
© 2022 Arkansas Supreme Court Committee on Jury Instructions-Civil
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