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GILES v. NEW HAVEN2/8/1994
9, 103, 48 A.2d 557 (1946). So restrictive an interpretation would substantially undermine the efficacy of the doctrine. Rather, our previous discussions of use were meant to reflect the idea of management and control, factors that help to limit the application of the res ipsa loquitur doctrine to those situations in which the defendant's negligence was more probably than not the cause of the plaintiff's injuries. Schurgast v. Schumann, supra, 479. The plaintiff's
actual use of the instrument, therefore does not, in and of itself, bar application of the doctrine. See Killian v. Logan, 115 Conn. 437, 440-42, 162 A. 30 (1932) (doctrine applied to action for injuries caused by negligent maintenance of fire escape used by plaintiff when injury occurred); Firszt v. Capitol Park Realty Co., 98 Conn. 627, 641-46, 120 A. 300 (1923) (doctrine applicable where plaintiff and her child were injured while riding an amusement park ride despite the fact that plaintiff was using the ride at the time of her injuries and could have been engaging in conduct which affected the cable).
The growing trend in res ipsa loquitur jurisprudence is not to apply the "control" condition in such a way that renders it "a fixed, mechanical and rigid rule. "`Control,' if it is not to be pernicious and misleading, must be a very flexible term. It may be enough that the defendant has the right or power of control, and the opportunity to exercise it . . . . It is enough that the defendant is under a duty which he cannot delegate to another . . . . There is now quite general agreement that the fact that the plaintiff is . . . using an appliance, which the defendant has manufactured or maintained, will not prevent the application of res ipsa loquitur when the evidence reasonably eliminates other explanations than the defendant's negligence." W. Prosser & W. Keeton, supra, 39, p. 250.
"The point of requiring control by the defendant is, as indicated by Prosser, to provide the basis for an inference that whatever negligence was involved may properly be charged to the defendant. Haven v. Kelble, 79 Wis.2d 444, 454, 256 N.W.2d 379 (1977); see W. Prosser, [Torts (4th Ed. 1971)] 39, pp. 219-21. [Thus, f]or the control condition of the res ipsa loquitur doctrine to apply, the plaintiff must adduce evidence from which the court, as a matter of law, can properly determine that a jury could reasonably draw an inference
that it is more probable than not that the person whose negligence caused the injury was the defendant and not some other party or agency." (Internal quotation marks omitted.) Malvicini v. Stratfield Motor Hotel, Inc., supra, 446.
In many jurisdictions, courts> now deemphasize the role of exclusive control as a condition of res ipsa loquitur, even though their earlier decisions included such a requirement. See, e.g., Tompkins v. Northwestern Union Trust Co., 198 Mont. 170, 177, 645 P.2d 402 (1982) (proof of exclusive control merely assists the plaintiff in establishing probable cause in a res ipsa loquitur case; concurrent causes may exist and yet not foreclose reliance on the doctrine); Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974) (requirement of exclusive control does not mean that defendant's control must have been exclusive in terms of physical possession, but only that "`it must appear that the negligence of which the thing speaks is probably that of defendant and not of another'"). "Exclusive control is merely one way of proving a defendant's responsibility. `He may be responsible, and the inference may be drawn against him, where he shares the control with another.' Restatement (Second) of Torts, 328D, comment g. Thus, the inference may be d
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