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Conner v. Menard10/21/2005
dant. Novak Heating & Air Conditioning v. Carrier Corp., 622 N.W.2d 495, 498-99 (Iowa 2001). Also, control must be established in the defendant at the time of the negligent act, which is not necessarily the time of injury. Weyerhaeuser, 620 N.W.2d at 832. Notably, as pertinent to this case, the doctrine does not apply when there is direct evidence as to the precise cause of the injury and all of the facts and circumstances attending the occurrence. Reilly, 282 N.W.2d at 694. We have said this is because, when direct evidence is presented, the underlying reason frequently advanced for application of the res ipsa doctrine is not present: . . . the chief evidence of the true cause of plaintiff's injury is practically inaccessible to plaintiff but accessible to defendant.
Id.; see also Ruud v. Grimm, 252 Iowa 1266, 1273, 110 N.W.2d 321, 325 (1961) ("Where the precise cause of the injury clearly appears the [res ipsa loquitur] rule is inapplicable."); Eaves v. City of Ottumwa, 240 Iowa 956, 968, 38 N.W.2d 761, 768 (1949) ("Where the precise cause of the injury clearly appears or is beyond dispute, of course there is no room for inference and the res ipsa rule has no application."). Relying on this general rule, Menard complains that giving both instructions gives a plaintiff "two bites at the apple." The plaintiff responds that, if there is sufficient direct evidence as to the details of the incident to justify a plaintiff's verdict, the addition of a res ipsa instruction is merely harmless error.
In this case, Menard challenged the district court's instruction on res ipsa on the ground that such an instruction was improper in view of the detailed evidence in the record regarding the specific cause of the accident. The plaintiff responded that this case fits into the category of cases in which both general and specific allegations of negligence may be submitted because the evidence of specific acts of negligence was not so clear as to preclude application of res ipsa. She points to testimony by a Menard employee that leaves some doubt about which of Menard's employees was responsible for the insulation falling.
The trial court gave the res ipsa instruction, based on its reading of Reilly, reasoning that the evidence . . . while it does tend to show some specific acts of negligence or could be interpreted that way, I think it also leaves the door open to the possibility that the complete explanation of the occurrence cannot be presented or is not within the knowledge of the parties at this time. And so I think both of those are available under the evidence in this case, so I'm going to allow [the res ipsa instruction].
The Reilly case, relied on by the district court and both litigants on appeal, was a medical malpractice case arising out of the defendant's alleged negligence in the delivery of a baby. Reilly, 282 N.W.2d at 689. The plaintiff introduced evidence of specific acts of negligence that allegedly caused the injury. The experts called by the parties disagreed on some of the details of the delivery. This court concluded that it was not fatal to a res ipsa theory that a plaintiff has also introduced evidence of specific acts of negligence. We stated:
roof of the cause of an injury or loss will not necessarily avoid application of the res ipsa doctrine. Care should be taken to distinguish those situations in which evidence of the cause of an injury or loss is so strong and extensive as to leave nothing for inference and those which establish the cause but still raise only an inference as to defendant's negligence.
Id. at 694 (citation omitted). In Reilly we approved the court's submission of res ipsa, although we characterized the case
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