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Mireles v. Broderick1/29/1992
ted above in connection with my Discussion of expert testimony, I believe the supreme court would adopt the Restatement's view that exclusive control is but one way of proving the necessary responsibility on the part of the defendant for res ipsa to apply. Restatement (Second) of Torts 328D cmt. g at 161-62. In the second place, the tenor of plaintiff's expert's testimony was that it was ultimately the responsibility of the anesthesiologist to insure that plaintiff's arm was properly padded and positioned, and that the padding and positioning was maintained despite the fact that others present at the operation may have accidentally moved the arm. The fact that this testimony may have been called into question by another doctor did not mean that plaintiff did not establish a factual basis for the giving of her requested instruction. See .
The simple fact of this case is that plaintiff proved facts entitling her to proceed to the jury on a res ipsa theory. She tendered an instruction conforming to the uniform jury instruction model. Because the instruction was not given, defendant had the unfair advantage of being allowed to argue to the jury, without judicially-sanctioned rebuttal from plaintiff, that the jury could not find negligence just because plaintiff was injured, although the sense of Dr. Waring's testimony and the function of res ipsa loquitur under the facts of this case were precisely to permit that inference of negligence.
Accordingly, I would reverse and remand for a new trial.
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