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Marx v. Huron Little Rock11/10/2004
ould not have instructed the jury on that issue.
Appellant argues next that the trial court erred in refusing her proffer of a jury instruction on res ipsa loquitur. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000). The appellate courts will not, however, reverse a trial court's refusal to give a proffered instruction unless there was an abuse of discretion. Id.
In order for the doctrine of res ipsa loquitur to apply, four essential elements must be established: (1) the defendant owes a duty to the plaintiff to use due care; (2) the accident is caused by the thing or instrumentality under the control of the defendant; (3) the accident that caused the injury is one that, in the ordinary course of things, would not occur if those having control and management of the instrumentality used proper care; (4) there is absence of evidence to the contrary. Barker v. Clark, supra. In describing the doctrine of res ipsa loquitur, our supreme court has stated:
The doctrine of res ipsa loquitur was developed to assist in the proof of negligence where the cause of an unusual happening connected with some instrumentality in the exclusive possession and control of the defendant could not be readily established by the plaintiff. The theory was that since the instrumentality was in the possession of the defendant, justice required that the defendant be compelled to offer an explanation of the event or be burdened with a presumption of negligence.
Id. at 14, 33 S.W.3d at 480 (quoting Reece v. Webster, 221 Ark. 826, 829, 256 S.W.2d 345, 347 (1953)). The supreme court has also observed that:
In the words of Mr. Justice Holmes, res ipsa loquitur is "merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case." Graham v. Badger, 164 Mass. 42, 41 N.E. 61. This is the kind of inference that jurors commonly are allowed to make from circumstantial evidence, the only difference being that, when res ipsa loquitur applies, the circumstantial evidence from which the inference is drawn is the fact of the injury itself, plus the few obvious facts which surround the injury but do not clearly explain how it happened.
Coca-Cola Bottling Co. v. Hicks, 215 Ark. 803, 807, 223 S.W.2d 762, 764-65 (1949).
In the case at bar, the trial judge refused the instruction based on his determination that there was evidence of appellant's comparative fault. Indeed, several Arkansas cases have strongly suggested that evidence of a plaintiff's negligence precludes the application of res ipsa loquitur. See, e.g., Barker v. Clark, supra at 14, 33 S.W.3d at 481; Phillips v. Elwood Freemen Co., Inc., 294 Ark. 548, 550, 745 S.W.2d 127, 129 (1988); Coca-Cola Bottling Co. v. Hicks, supra at 807, 223 S.W.2d at 765. However, because we have determined that there was no substantial evidence of appellant's negligence in this case and that the issue of comparative fault should not have been presented to the jury, we see no impediment to the court instructing the jury on res ipsa loquitur. The instruction offered by appellant was a correct statement of the law, being based on AMI Civil 610 (2004), which informs the jury that, if the elements of res ipsa loquitur are
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