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Mireles v. Broderick1/29/1992
t with language added by Plaintiff. The Dissent contends that it was appropriate for Plaintiff to have filled in the blank with the description of what her expert said caused her injury. This misses the point. Plaintiff's expert, Dr. Waring, referred to what we have called the "Waring protective procedures" which were and should have been incorporated in the issues instruction for proof of specific acts of negligence, not in the res ipsa loquitur instruction.
Finally, the Dissent argues that it is not possible to read the first element of Plaintiff's requested res ipsa loquitur instruction as requiring the jury to find all the elements of a specific type of negligence. Perhaps not, if read in isolation; however, when read in conjunction with the issues instruction, that is the only reasonable interpretation. This interpretation is made clear when one considers the purpose of res ipsa loquitur. Judge Hartz, writing for the majority, has adequately discussed the purpose; however, the examination of a typical res ipsa loquitur case demonstrates the point. In Pillars v. R.J. Reynolds Tobacco Co., 78 So. 365, 366 (Miss. 1918), the court applied the following logic when res ipsa loquitur was argued in the case involving contaminated chewing tobacco: "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."
In Pillars, a proper res ipsa loquitur instruction would likely have called for insertion of language such as "damage to plaintiff was proximately caused by the presence of foreign matter in chewing tobacco the packaging of which is under the exclusive control and management of defendant." Had the plaintiff in that case inserted instead that the injury was proximately caused by "inadequate quality control" there would have been nothing for the jury to infer.
In sum, res ipsa loquitur is appropriate when the injured party encounters difficulty in proving how the injury occurred. When the injury results from an occurrence that does not ordinarily happen in the absence of negligence on the part of the person in control, i.e., a toe in chewing tobacco or, perhaps, ulnar neuropathy following a surgical procedure, the jury may infer negligence. It does not, however, infer negligence from the proof of acts of negligence. Here, Plaintiff wanted the court to tell the jury that the act of negligence, "inadequate protection of Plaintiff's extremities during anesthesia," does not ordinarily occur in the absence of negligence. I agree the court properly refused to do so.
PICKARD, Judge (Dissenting).
The crux of the majority's opinion is that plaintiff's tendered instruction was not a res ipsa instruction because the first element begins after the res ipsa bridge is crossed, and therefore the instruction is nothing more than a dressed-up negligence instruction, an "unnecessary crutch" to reach the issue of negligence. I cannot agree with the majority's formulation because (1) as I understand res ipsa loquitur, it is merely one form of circumstantial evidence; (2) as a form of circumstantial evidence, a plaintiff is permitted to rely on res ipsa loquitur although he or she attempts to prove, and may be successful at proving, specific negligence; (3) the tendered instruction did nothing more than instruct the jury on plaintiff's theory of the case
with reference to the specific negligence that plaintiff attempted, obviously unsuccessfully, to prove; (4) the formulation of the instruction was invited by the format of SCRA 1986, 13-1623; and (5) the majority
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