MOREJON v. RAIS CONSTRUCTION COMPANY (2006)

 OPINION OF THE COURT

 In a personal injury or property damage case, it is plaintiff's burden to prove defendant negligent.   Occasionally, however, a plaintiff to whom the defendant owes a duty of care is not in a position to prove directly what actually happened or that a specific act of the defendant was negligent.   In a proper case, under the doctrine of res ipsa loquitur, the law allows a jury to consider the circumstantial evidence and infer that the defendant was negligent in some unspecified way.  (See generally Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997].) ¹

On this appeal, we address defendants' assertion-supported by the Appellate Division-that circumstantial evidence (res ipsa) may never justify summary judgment for the plaintiff.   We conclude that, while there is no rule or policy absolutely foreclosing that possibility, it should be a rare event.   Here, open questions of fact remain.

I.

Plaintiff, on behalf of the estate of Fabio Pardo, sued defendant Rais Construction Company, alleging that Pardo was fatally injured while delivering building materials to Rais Construction for a job it was doing at the residence owned by Barry and Susan Kleinman in Nassau County.²

At their depositions, Alejandro and Maria Pardo (Fabio's brother and sister-in-law) testified that Rais had engaged Fabio to pick up boxes from a hardware store and deliver them to the Kleinman house the morning of December 26, 1998, a Saturday.   They claimed that they accompanied Fabio to the site, where a roll of roofing material fell from the roof and hit him on the head.   They testified that a man at the house opened the door but neither Maria nor Alejandro could identify him, nor did they tell him that there had been an accident.   Further, Maria acknowledged that Fabio did not seek any medical treatment for the injury until the end of February 1999.   In his deposition, Cesar Rais testified that he never left roofing materials on the Kleinmans' roof, implying that none were there on December 26.   Rais also testified that his crew stopped work at the site three days before the incident.   Barry Kleinman supported Rais's assertions.

Rais further stated that he did not engage Fabio to do any work on the day in question or even during the previous several weeks, having let him go weeks before out of concern that Fabio's extreme headaches were posing a safety problem for Fabio and others.   Rais added that it was not until April of 1999 that  he was told about the alleged accident.   Barry Kleinman testified that he was at the house the afternoon of December 26, 1998 and saw no evidence of work being done.   He said it had snowed the day before and there were no tracks or disturbances in the fresh snow.

In resisting plaintiff's motion for summary judgment, defendants argued that there were disputed questions of fact, including whether the accident had even occurred.   Supreme Court initially denied the motion but on reargument granted plaintiff summary judgment against the Rais defendants on the basis of res ipsa loquitur.   The Appellate Division reversed, stating that res ipsa loquitur “may not be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability” (18 A.D.3d 632, 633, 795 N.Y.S.2d 654 [2d Dept.2005] ).   Because there are questions of fact precluding summary judgment for the plaintiff, we affirm.   We disagree, however, with the Appellate Division's statement that res ipsa loquitur may never serve as a basis for granting a plaintiff summary judgment.

II.

In addressing the procedural role of res ipsa loquitur, it is useful to examine the development of the doctrine itself.   This Court used the term “res ipsa loquitur” for the first time in Mullen v. St. John, 57 N.Y. 567, 570 [1874], in which a part of a building fell on the plaintiff.  “Buildings properly constructed do not fall without adequate cause,” we said.  (Id. at 569.)

“If there be no tempest prevailing or no external violence of any kind, the fair presumption is, that the fall occurred through adequate causes, such as the ruinous condition of the building, which could scarcely have escaped the observation of the owner.   The mind is thus led to a presumption of negligence on his part, which may, of course, be rebutted.   In the absence of explanatory evidence, negligence may be presumed.”  (57 N.Y. at 569-570.) 3

Citing an English case (Kearney v London, Brighton, & S. Coast Ry. Co., 1869-1870 LR [5 QB] 411 [1870] ), the Court  expressly espoused the doctrine of res ipsa loquitur,⁴ and upheld the judgment for plaintiff based on the jury's verdict.   After Mullen, and for about 30 years, the Court heard a number of res ipsa loquitur cases and was almost uniformly inhospitable to the plaintiffs or the doctrine.⁵  Slowly thereafter, res ipsa loquitur gained general acceptance with us,⁶ but there was some confusion over the doctrine's procedural effects.   Courts, including ours, used “prima facie case,” “presumption of negligence” and “inference of negligence” interchangeably even though the phrases can carry different procedural consequences.   One case went so far as to use all three interchangeably.⁷

 In Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455 [1941], a pivotal case, we reversed the grant of a directed verdict for the plaintiff.   The Court emphasized that when dealing with res ipsa loquitur, the indiscriminate use of the terms “presumption” and “inference” caused procedural problems.   The Court held that res ipsa loquitur does not create a presumption of negligence against the defendant.   Rather, the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent.   The Court went on to state that res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is unrefuted.

 We stand by those principles, and in the context of this appeal, reaffirm that only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict.   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.

 Drawing on a number of cases that had fashioned the criteria for res ipsa loquitur, and relying on Prosser, the Court listed these criteria in Corcoran v. Banner Super Mkt., 19 N.Y.2d 425, 280 N.Y.S.2d 385, 227 N.E.2d 304 [1967]:

“(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.”  (19 N.Y.2d at 430, 280 N.Y.S.2d 385, 227 N.E.2d 304, quoting Prosser, Torts § 39, at 218 [3d ed.].)

Our more recent decisions have generally followed this formulation (see e.g. States v. Lourdes Hosp., 100 N.Y.2d 208, 762 N.Y.S.2d 1, 792 N.E.2d 151 [2003];  Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456 [1997] ), and the case at hand gives us no reason to change it.   We have not, however, discussed the summary judgment or directed verdict aspects of the doctrine in the 65 years since Foltis.   Over the last century, the Appellate Division has held barely more than a dozen times that a plaintiff is entitled to summary judgment or a directed verdict in res ipsa loquitur cases.⁸  An approach that sparing is  consistent with Foltis, and in accord with the treatise commentators.⁹

Since Foltis, our courts have grown more sensitive to the differences between inferences and presumptions, recognizing that terminology can carry varying procedural implications.¹⁰  But the line is sometimes blurry, and on occasion, courts have still referred to res ipsa loquitur as creating a presumption, as opposed to an inference, of negligence.¹¹  Indeed, Wigmore has characterized res ipsa loquitur as raising a presumption of negligence, as have a number of courts in other jurisdictions.¹²  The difficulty in applying a presumption or an inference has  generated some criticism in an analogous setting (see Allen, Presumptions, Inferences and Burden of Proof in Federal Civil Actions-An Anatomy of Unnecessary Ambiguity and a Proposal for Reform, 76 Nw U. L. Rev. 892 [1982] ) and one author has listed eight ways in which courts have used the term “presumption.” ¹³

In our own taxonomy in other contexts, we speak of “presumption[s] of law” (Matter of Buccini v. Paterno Constr. Co., 253 N.Y. 256, 259, 170 N.E. 910 [1930] ), “presumption[s] of fact” (Myers v. Bartholomew, 91 N.Y.2d 630, 636, 674 N.Y.S.2d 259, 697 N.E.2d 160 [1998] ), “conclusive presumption[s]” (Cornell Univ. v. Bagnardi, 68 N.Y.2d 583, 594, 595, 510 N.Y.S.2d 861, 503 N.E.2d 509 [1986] ), “rebuttable presumption[s]” (Williams v. City of New York, 2 N.Y.3d 352, 366, 779 N.Y.S.2d 449, 811 N.E.2d 1103 [2004] ), “conflicting presumptions” (Palmer v. Palmer, 162 N.Y. 130, 133, 56 N.E. 501 [1900] ) and “statutory presumption[s]” (DeJesus v. DeJesus, 90 N.Y.2d 643, 652, 665 N.Y.S.2d 36, 687 N.E.2d 1319 [1997] ).   Perhaps even more unsettling, we also hear of “mandatory inference[s]” (West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 [5th Cir.2003] ), “presumptive inference [s]” (Matter of Hines v. New York City Hous. Auth., 67 A.D.2d 1000, 1001, 413 N.Y.S.2d 733 [2d Dept.1979] ) and “permissive presumption[s]” (County Court of Ulster Cty. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 [1979] ).   In United States v. Gainey, 380 U.S. 63, 78, 85 S.Ct. 754, 13 L.Ed.2d 658 [1965] [dissenting op.], Justice Black stated that “[i]n its simplest form a presumption is an inference permitted or required by law․”

 In most of the post-Foltis res ipsa loquitur cases cited, the courts would likely have reached the same result whether by way of inference or presumption or some other word or phrase.   We adhere, nevertheless, to our jurisprudence, in which we denominate res ipsa loquitur as creating an inference (as defined in this writing and our case law [e.g. Kambat, supra ] ).

Conclusion

 The dizzying array of formulations (from mandatory inferences to permissive presumptions), however, suggests that things would be far less complicated if we viewed the res ipsa loquitur/ summary judgment issue without undue emphasis on labels and pigeonholes.   Res ipsa loquitur is a phrase that, perhaps because it is in Latin, has taken on its own mystique, although it is nothing more than a brand of circumstantial evidence.¹⁴   Viewed in that light, the summary judgment (or directed verdict) issue may also be properly approached by simply evaluating the circumstantial evidence.   If that evidence presents a question of fact as to the defendant's liability under the Kambat/Corcoran test for res ipsa loquitur, the case should go to trial.   If the circumstantial evidence does not reach that level and present a question of fact, the defendant will prevail on the law.   Alternatively, as we have said, the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination.   This is not such a case.   Here, there are material questions of fact for trial.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Order affirmed, etc.

FOOTNOTES

1.   See also Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200 [1986];  Restatement (Third) of Torts:  Liability for Physical Harm § 17 (Tentative Draft No. 1, Mar. 28, 2001);  Prosser and Keeton, Torts, at 258 (5th ed. 1984);  Dobbs, Torts, at 370 (2001);  PJI3d 2:65 (2006).

2.   The motion court dismissed the complaint against the Kleinmans, who are not involved in this appeal, leaving defendants Rais Construction Company, and its principals Cesar Rais and Nora Sanchez (the Rais defendants).

3.   Note that the Court spoke of a “presumption of negligence.”   More about this later.

4.   In J. Russell Mfg. Co. v. New Haven Steamboat Co., 50 N.Y. 121 [1872], decided two years before Mullen, the Court reached a similar result without using the term “res ipsa loquitur,” concluding that the trial court erred in directing a verdict for the defendant.   For an English case even earlier than Kearney, see Byrne v. Boadle (2 H & C 722, 159 ER 299 [1863] ), perhaps the first of the genre.   For a discussion of the historical context in which the doctrine developed, see Witt, Toward a New History of American Accident Law:  Classical Tort Law and the Cooperative First Party Insurance Movement (114 Harv. L. Rev. 690, 772-773 [2001] ).

5.   (Wiedmer v. New York El. R.R. Co., 114 N.Y. 462, 21 N.E. 1041 [1889];  Cosulich v. Standard Oil Co., 122 N.Y. 118, 25 N.E. 259 [1890];  Flinn v. New York Cent. & Hudson Riv. R.R. Co., 142 N.Y. 11, 36 N.E. 1046 [1894];  Loudoun v. Eighth Ave. R.R. Co., 162 N.Y. 380, 56 N.E. 988 [1900];  Kay v. Metropolitan St. Ry. Co., 163 N.Y. 447, 57 N.E. 751 [1900];  Wolf v. American Tract Socy., 164 N.Y. 30, 58 N.E. 31 [1900];  Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925 [1901];  Welsh v. Cornell, 168 N.Y. 508, 61 N.E. 891 [1901];  Crowley v. Rochester Fireworks Co., 183 N.Y. 353, 76 N.E. 470 [1906];  Duhme v. Hamburg-American Packet Co., 184 N.Y. 404, 77 N.E. 386 [1906];  Cunningham v. Dady, 191 N.Y. 152, 83 N.E. 689 [1908];  Robinson v. Consolidated Gas Co. of N.Y., 194 N.Y. 37, 86 N.E. 805 [1909];  Henson v. Lehigh Val. R.R. Co., 194 N.Y. 205, 87 N.E. 85 [1909];  Ferrick v. Eidlitz, 195 N.Y. 248, 88 N.E. 33 [1909];  Eaton v. New York Cent. & Hudson Riv. R.R. Co., 195 N.Y. 267, 88 N.E. 378 [1909];  Conyes v. Oceanic Amusement Co., 202 N.Y. 408, 95 N.E. 801 [1911];  Hardie v. Boland Co., 205 N.Y. 336, 98 N.E. 661 [1912] ).   In Hogan v. Manhattan Ry. Co., 149 N.Y. 23, 43 N.E. 403 [1896], the Court affirmed a judgment, based on a jury verdict, for a plaintiff who was hit by an iron bar that fell from an elevated railway, but did not use the phrase “res ipsa loquitur.”  Rosenstein v. Vogemann, 184 N.Y. 325, 77 N.E. 625 [1906] may also qualify as an exception to the Court's seeming resistance to res ipsa loquitur during that era.

6.   See e.g. Newell v. Brooklyn Bus Corp., 280 N.Y. 650, 20 N.E.2d 1015 [1939] (affirming verdict for plaintiff with no opinion);  Bressler v. New York R.T. Corp., 277 N.Y. 200, 13 N.E.2d 772 [1938];  Lessig v. New York Cent. R.R. Co., 271 N.Y. 250, 2 N.E.2d 646 [1936];  Tortora v. State of New York, 269 N.Y. 167, 199 N.E. 44 [1935];  Solko v. Hay Foundry & Iron Works, Inc., 245 N.Y. 554, 157 N.E. 855 [1927] (affirming verdict in favor of the plaintiff without opinion);  Pierson v. Interborough R.T. Co., 227 N.Y. 666, 126 N.E. 920 [1920] (affirming verdict in favor of the plaintiff without opinion).

7.   (Plumb v. Richmond Light & R.R. Co., 233 N.Y. 285, 135 N.E. 504 [1922].)   A contemporary law review article described the confusion that arises from the failure to use the three terms distinctively (Rosenthal, The Procedural Effects of Res Ipsa Loquitur in New York, 22 Cornell L Q 39 [1936] ).

8.   See Thomas v. New York Univ. Med. Ctr., 283 A.D.2d 316, 725 N.Y.S.2d 35 (1st Dept 2001);  Salter v Deaconess Family Medicine Ctr. (appeal No. 2), 267 A.D.2d 976, 701 N.Y.S.2d 586 (4th Dept.1999);  Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566 (4th Dept 1999);  O'Connor v. 72 St. E. Corp., 224 A.D.2d 246, 637 N.Y.S.2d 412 (1st Dept 1996);  Smith v. Moore, 227 A.D.2d 854, 642 N.Y.S.2d 393 (3d Dept 1996);  Dillenberger v. 74 Fifth Ave. Owners Corp., 155 A.D.2d 327, 547 N.Y.S.2d 296 (1st Dept 1989);  Farina v. Pan Am. World Airlines, 116 A.D.2d 618, 497 N.Y.S.2d 706 (2d Dept 1986);  Cebula v. Bonime, 92 A.D.2d 856, 459 N.Y.S.2d 847 (2d Dept 1983);  Lippman v. State of New York, 83 A.D.2d 700, 442 N.Y.S.2d 598 (3d Dept.1981);  Notice v. Regent Hotel Corp., 76 A.D.2d 820, 429 N.Y.S.2d 437 (1st Dept 1980);  Horowitz v. Kevah Konner, Inc., 67 A.D.2d 38, 414 N.Y.S.2d 540 (1st Dept 1979);  Derrell v. Nassau County Med. Ctr., 73 A.D.2d 682, 423 N.Y.S.2d 845 (2d Dept 1979);  Richard Equip. Corp. v. Manhattan Indus. Contr. Co., 9 A.D.2d 691, 191 N.Y.S.2d 587 (2d Dept.1959);  see also Restatement (Third) of Torts:  Liability for Physical Harm § 17, Reporters' Note, Comment j (Tentative Draft No. 1, Mar. 28, 2001) (“[O]n some occasions the force of circumstantial evidence can be such as to call for a directed verdict for the plaintiff”).

9.   See Prosser and Keeton, Torts, at 258 (5th ed 1984);  Restatement (Third) of Torts:  Liability for Physical Harm § 17, Reporters' Note, Comment j (Tentative Draft No. 1, Mar. 28, 2001);  see generally Glenn, Res Ipsa Loquitur as Ground for Direction of Verdict in Favor of Plaintiff, 97 A.L.R.2d 522, 1964 WL 13134 (1964).

10.   See generally Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn. L. Rev. 241 (1936).

11.   See e.g. Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 692 N.Y.S.2d 13 (1st Dept 1999);  Conderman v. Rochester Gas & Elec. Corp., 262 A.D.2d 1068, 693 N.Y.S.2d 787 (4th Dept 1999);  Stanski v. Ezersky, 228 A.D.2d 311, 644 N.Y.S.2d 220 (1st Dept 1996).

12.   See 9 Wigmore, Evidence § 2508, at 375;  § 2509 (3d ed. 1940);  see e.g. Cox v. Paul, 828 N.E.2d 907, 912 (Ind.2005) (“Res ipsa loquitor, in some circumstances, merely permits the trier of fact to infer negligence.   In others, it may function ‘as a rule of policy which goes beyond the probative effect of circumstantial evidence, and requires the defendant to explain the event of circumstantial evidence or be liable.’   If so, res ipsa loquitor may be ‘given a greater procedural effect’ by shifting the burden of proof to the defendant or creating a presumption of negligence” [citations omitted] );  Woodard v. Custer, 473 Mich. 1, 6 n. 2, 702 N.W.2d 522, 525 n. 2 (2005) (“ ‘Res ipsa loquitur’ is the ‘[r]ebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence’ ” [citation omitted] );  Palmer v. Clarksdale Hosp., 206 Miss. 680, 698, 40 So.2d 582, 586 (1949) (“the doctrine of res ipsa loquitur does not in any instance create a case of absolute liability, but simply raises a presumption or makes out a prima facie case of negligence to the extent that the defendant is called upon to meet it with an explanation”).

13.   See 2 McCormick, Evidence § 342, at 433 (5th ed. 1999), citing Laughlin, In Support of the Thayer Theory of Presumptions, 52 Mich. L. Rev. 195, 196-207 (1953).

14.   See Grady, Res Ipsa Loquitur and Compliance Error, 142 U. Pa. L. Rev. 887, 913 (1994) (“The traditional consensus is that the doctrine, though a substantive one of tort, applies to cases in which the plaintiff possesses only circumstantial evidence that the defendant's negligence caused her injury”).

ROSENBLATT, J.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, GRAFFEO, READ and R.S. SMITH concur.