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Lowrey v. Montgomery Kone3/26/2002
a, 405 N.W.2d 863, 874 (Mich. 1987) (" f there is such evidence, even if it is disputed, . . . the jury is to determine whether plaintiff has proven whether it is more likely than not that defendant's negligence caused plaintiff's injury. The court may grant a motion for a directed verdict only if it is determined that reasonable minds could not differ that this result could ordinarily happen without negligence.").
Montgomery Kone attempts to draw the opposite conclusion from Nieman v. Jacobs, 87 Ariz. 44, 347 P.2d 702 (1959), and Faris v. Doctors Hospital, Inc., 18 Ariz. App. 264, 501 P.2d 440 (1972), but neither case is apposite. In Faris, a medical malpractice action, the plaintiff, in the aftermath of abdominal surgery, experienced neck pain and was discovered to be suffering from a herniated cervical disk. The plaintiff attempted, but was not permitted, to rely upon res ipsa loquitur to establish that her disk injury was the likely consequence of negligence on the part of her surgeons or her anesthesiologist. But the plaintiff offered no expert opinion to establish that her herniated disk would not likely have arisen in the absence of such negligence. The defendants' experts, on the other hand, testified that plaintiff's disk condition was not necessarily related to trauma and, in light of her age-related degenerative disk disease, could have been triggered by "coughing, sneezing, or merely awakening in the morning." Id. at 266, 501 P.2d at 442. Therefore, although Faris denied the plaintiff access to res ipsa loquitur, it does not stand for the proposition that conflicting expert testimony defeats the applicability of that doctrine. It is simply a case in which the plaintiff offered no expert testimony to overcome the opinion of defendants' experts that her condition could be attributed to causes other than their negligence.
In Nieman, a hotel elevator stopped about two feet below the lobby, and the operator could not raise it into place. The plaintiff was not injured by the movement of the elevator, however, but struck her head on the door frame while trying to climb out. 87 Ariz. at 46, 347 P.2d at 703. Her means of injury gave rise to a question whether the plaintiff's injury was caused by her own conduct. And at the time of Nieman, a plaintiff who sought to invoke res ipsa was obliged to establish that the accident was not due to any negligence on her part -- a requirement now abandoned since the advent of comparative fault. See supra n.6. Because the plaintiff could not establish that her injury was more likely attributable to the negligent operation or maintenance of the elevator than to her own fault, she was denied recourse to res ipsa loquitur. The Nieman court expressly distinguished falling elevator cases, however, stating that in such cases, "the question of causation generally is eliminated, . . . the sole consideration relates to proof of negligence," and, accordingly, courts "recognize the peculiar availability of the res ipsa loquitur rule." 87 Ariz. at 49, 347 P.2d at 705-06.
Montgomery Kone attempts, nonetheless, to profit from the Nieman court's observation that "if . . . there are two concurring causes of the accident . . . and there is no evidence it was any more likely that the injury was caused by the negligence of defendant than by that of the stranger, the rule (of res ipsa loquitur) does not apply." 87 Ariz. at 48, 347 P.2d at 705 (quoting Phen v. All American Bus Lines, Inc., 56 Ariz. 567, 110 P.2d 227 (1941)). But this is not a case with no evidence that the injury was likely caused by the negligence of the defendant. Rather, it is one in which the parties offered conflicting expert testimony on the question. Which expert was correct was a matter
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