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POULIN v. AQUABOGGAN WATERSLIDE12/28/1989
248 (1934); W. Prosser & W. Keeton, The Law of Torts § 40, at 260 (5th ed. 1984). It is only when the evidence fails to completely explain the cause of a plaintiff's
When a plaintiff presents evidence fully explaining an injury , yet requests that the jury be instructed on res ipsa loquitur, the court must determine from the "character" of the incident, Ginn, 334 A.2d at 879, whether, aside from the complete explanation advanced by the plaintiff and presented to the jury for its decision, there is sufficient evidence to support a rational inference that the defendant was negligent and that the plaintiff's injury resulted from that negligence. Although the Poulins requested an alternative instruction on res ipsa loquitur, they presented no evidence, aside from that considered and rejected by the jury, on which to base such an instruction. The Poulins presented evidence that Mrs. Poulin was injured upon impact after hitting a bump on the surface of the slide, becoming airborne and landing. Their expert witness, a safety specialist, testified that the bump resulted from a gap in a seam on the slide's surface. The Poulins introduced photographs of that portion of the slide where each family member testified to observing a specific gap in the seam of the slide. They related that they saw water seeping through the gap and that toboggans "bumped" and became airborne as they passed over it. Mrs. Poulin said, after observing the gap in the slide, "Now I know where I got hurt." The trial justice, who had presided over the six-day trial stated that "bumps are what this case is all about, the bump that caused the accident."
In applying the provisions of section 328D of the Restatement (Second) of Torts, aside from the specific evidence presented by the Poulins explaining Aquaboggan's negligence and Mrs. Poulin's injury resulting from the bump at the location of the gap in the slide, and excluding any possibility that the slide was inherently dangerous (a theory not alleged or claimed by the Poulins), I find no evidence in the record on which a jury rationally could base an inference that Mrs. Poulin's injury was caused by Aquaboggan's negligence. Excluding the Poulins' explanation of the incident and the design of the slide, the injury cannot be found to be "of a kind which ordinarily does not occur in the absence of negligence. . . ." Restatement (Second) of Torts § 328D(1)(a). Nor is there any evidentiary basis on which a jury rationally could conclude that "other responsible causes, including the conduct [or the physical condition of Mrs. Poulin], . . . are sufficiently eliminated by the evidence. . . ." Id. § 328D(1)(b). Aside from the specific evidence of negligence presented by the Poulins and considered by the jury after having been properly instructed, there is "no [other] evidence which would remove the causation question from the realm of conjecture and place it [within] the realm of reasonable inferences. . . ." Utica Mutual, 184 N.W.2d at 69. " imply because the accident had in fact occurred" is an insufficient reason for the court to give a res ipsa loquitur instruction, and a verdict for the Poulins arrived at under the principles of res ipsa would have been based upon "sheer speculation." Pratt v. Freese's, Inc., 438 A.2d 901, 904 (Me. 1981). The trial court correctly refused to instruct the jury on res ipsa loquitur.
I would reject the Poulins' other contentions that the jury instructions were inadequate and would affirm the judgment.
CLIFFORD, Justice, dissenting.
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