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Lowrey v. Montgomery Kone3/26/2002
sed the offending agency or instrumentality to operate to her injury. McDonald, 157 Ariz. at 319, 757 P.2d at 123. Only the first and third elements are at issue in this case.
A. The Likelihood of Negligence
Montgomery Kone first argues that Lowrey cannot invoke res ipsa loquitur because there is a viable, albeit disputed, explanation of the accident that attributes it to a non-negligent cause. We must accept as given, for the purpose of summary judgment, that Lowrey's injuries were caused by the elevator's abrupt stop. But because Montgomery Kone's expert offered the opinion that the incident was caused by a power failure and did not result from any negligence, the availability of a viable non-negligent explanation, according to Montgomery Kone, precludes the application of the doctrine.
We disagree. First, the law does not require a plaintiff to rule out every conceivable explanation for an accident other than negligence before resorting to res ipsa loquitur. McDonald, 157 Ariz. at 319, 757 P.2d at 123. Indeed, before applying the doctrine, a fact-finder may need to assess the relative likelihood of explanations other than negligence. "The first requirement [to establish res ipsa loquitur] involves nothing more than a weighing of the probabilities as to the cause of certain events; if the probabilities weigh heavily in favor of the event having been negligently caused, then res ipsa applies." Tucson Gas & Elec. Co. v. Larsen, 19 Ariz. App. 266, 267, 506 P.2d 657, 658 (1973).
Second, a jury may require expert assistance in resolving the threshold question whether an accident was of a kind not likely to occur in the absence of negligence. Common knowledge may often suffice, as illustrated by the case that elicited the memorable observation, "We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless." Pillars v. R. J. Reynolds Tobacco Co., 117 Miss. 490, 500, 78 So. 365, 366 (1918). But when no fund of common knowledge would enable a layperson to reasonably draw such a conclusion, the plaintiff may present "expert testimony that such an event usually does not occur without negligence." Ward, 178 Ariz. at 355, 873 P.2d at 693 (quoting Restatement (Second) of Torts § 328D cmt. d (1965)); see also Prosser and Keeton, Law of Torts § 39, at 247 (5th ed. 1984). Thus, in Cox, where a plaintiff wearing an ordinary jacket was injured when her jacket was caught under an escalator's moving handrail, the plaintiff established the first element of res ipsa loquitur by presenting a mechanical engineer's opinion that such an accident could not have occurred unless the escalator had been improperly designed or maintained. 183 Ariz. at 364, 903 P.2d at 1122.
Third, just as, when the fact-finder cannot draw upon common knowledge to resolve the point, a plaintiff may present expert testimony that the event would not likely have occurred in the absence of negligence, so may a defendant present the conflicting expert opinion that there is a likely non-negligent explanation for the event. Such a conflict was presented in this case. Further, " he existence of conflicting expert testimony in itself does not render the doctrine inapplicable." Washington Metro. Area Transit Auth. v. L'Enfant Plaza Properties, Inc., 448 A.2d 864, 868 (D.C. 1982). Rather, when, as here, qualified experts disagree whether an accident is of a type that ordinarily results from negligence, their disagreement presents a threshold issue that the fact-finder must resolve in order to decide whether the doctrine may be applied. See id.; see also Jones v. Porrett
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