In a negligence action, the plaintiff must ordinarily prove that there was some specific negligent act or omission by the defendant that caused the accident. The mere fact that an accident happened, with nothing more, does not provide proof that the accident was a result of any negligence. However, in certain circumstances, the very happening of an accident may be an indication of negligence. This is the type of situation that the res ipsa loquitur (“res ipsa”) doctrine was designed to address.
When a trial judge finds it appropriate to provide a res ipsa charge, the plaintiff’s attorney is relieved of the burden of proving actual negligence. The English translation of the Latin phrase res ipsa loquitur is the “thing speaks for itself.” The res ipsa doctrine allows a jury to infer negligence from a certain set of circumstances. In order to prevent the court from giving this charge, the defense must focus on disproving the res ipsa factors.
The Res Ipsa Loquitur Model Jury Charge, 5.10D, provides that negligence of a defendant may be inferred if (1) the defendant had exclusive control of the instrumentality causing the occurrence; (2) the incident would not have occurred if the defendant had exercised reasonable care; and (3) plaintiff’s voluntary act or negligence did not contribute to the occurrence. In order to invoke the res ipsa doctrine, a plaintiff does not have to exclude all other possible causes of an accident. The plaintiff only has to establish that it was “more probable than not” that the defendant’s negligence was a proximate cause of the accident.
In Flis v. Mainco Elevator Company, decided on December 1, 2009, the New Jersey Appellate Division held that it was appropriate to charge the jury with res ipsa under the specific facts of the case. In this personal injury action, the plaintiffs sustained physical and psychological injuries as a result of being trapped in an elevator, which repeatedly “jerked up and down between the fourth floor and basement” for over two hours. Defendant, Mainco, was responsible for maintaining the elevator on a monthly basis. Despite the service agreement, which required monthly maintenance, the elevator had not been serviced for at least three months prior to the incident.
During the trial, plaintiffs’ expert identified the source of the malfunction as an “LR” (late call response) relay that had “burned out.” The expert opined that Mainco’s faulty or non-existent maintenance was the cause of the erratic behavior of the elevator. During the cross-examination of plaintiffs’ expert, the expert admitted that a relay failure could occur spontaneously. However, despite this testimony, the defendant failed to produce any evidence, including its own expert testimony, which demonstrated that this accident could have occurred absent negligence on the part of Mainco. At the close of trial, the trial judge charged the jury with res ipsa. The jury found for the plaintiffs and awarded substantial damages in their favor.
On appeal, the Appellate Division agreed with the trial court that there were a significant number of res ipsa factors present. Of note, the Appellate Division held that “the occurrence itself bespeaks negligence.” Additionally, the Appellate Division found that based upon the evidence presented, the “probabilities favored negligence.”
Insurance carriers and their attorneys must be cognizant of the res ipsa doctrine when defending a negligence action. If the charge is given, the jury will be instructed that the mere happening of an accident may be an indication of negligence. Therefore, it is imperative to develop a trial strategy from the onset of the lawsuit that focuses on addressing the res ipsa factors in order to prevent the inference of negligence.
One way to potentially prevent the res ipsa charge is to establish that the accident could have occurred in the absence of negligence. In Flis, plaintiffs’ own expert admitted, during cross-examination, that a relay failure could occur spontaneously. However, the defense failed to develop this possibility by producing evidence, specifically, testimony of a liability expert, to demonstrate that even if monthly maintenance was performed by Mainco, the relay still could have spontaneously failed. Therefore, had the defense produced such evidence, the res ipsa charge may not have been appropriate.
The development of a trial strategy addressing the res ipsa factors may prove vital in defending a negligence action. For example, if the defense can demonstrate that an accident still could have occurred in the absence of negligence, it is conceivable that a trial judge will not charge the jury with res ipsa; or in the alternative, if the charge is given, the jury may not find it appropriate to infer negligence. The retention of a defense liability expert may be necessary to support this possibility. If the defense is successful in preventing the res ipsa charge, a jury will not be allowed to infer negligence and the plaintiff will be left with the greater burden of proving actual negligence.

Rey Villanueva, Esq.