AMI 609 Res Ipsa Loquitur

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).