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Conner v. Menard10/21/2005
as "a close one." Id. at 695. We noted that, despite the fact that evidence of the dynamics of the child's injury was overwhelming, the evidence failed "to pinpoint the precise cause of the injury and all of the facts and circumstances attending the occurrence." Id. at 696.
The evidence presented at trial was undisputed. The plaintiff's husband, who witnessed the incident, testified that a Menard employee tried to pull insulation from the bottom of the pile. When this did not work, the employee (and possibly two employees) climbed up the side of a divider fifteen- to eighteen-feet tall. The husband testified that a bundle of insulation fell on the plaintiff, and in fact, he believed several fell. At least one employee was at the top of the pile at the time the insulation fell. A Menard employee testified that either he or a co-employee knocked the insulation loose. An employee's incident report succinctly summarized the event:
Customer was in the outside yard. Employee was pulling . . . insulation down. Insulation knocked customer down injuring neck . . . ."
This evidence was accessible to the plaintiff and was "so strong and extensive as to leave nothing for inference." Reilly, 282 N.W.2d at 694.
In this case, the court gave the res ipsa instruction over Menard's objection that it was inapplicable in view of clear evidence of specific negligence. We review a decision by the trial court to give a challenged instruction for correction of errors at law. In re Estate of Hagedorn, 690 N.W.2d 84, 88 (Iowa 2004). However, error in giving a challenged instruction will not result in reversal unless the challenging party has been prejudiced by it. Id.
The facts of this case are reminiscent of law school and the famous case of Byrne v. Boadle, (1863) 2 H & C 722, 159 Eng. Rep. 299 (Exch.), in which a flour barrel rolled out of an upstairs window and struck the plaintiff. In that case, the court stated:
ere the evidence before the court was that the plaintiff and his wife were passing along the Scotland Road, in Liverpool, and when they were [close] against the defendant's warehouse, the whole of which was in his occupation, used by him as a flour dealer, there came down suddenly upon the man a barrel of flour, and thus the accident occurred to the plaintiff of which he complained. This is one of those cases in which . . . a presumption of negligence by defendant is raised, and it was for him, who had all the means of evidence and knowledge within his reach, to meet it. It having been shown that the defendant had the entire possession and exclusive use of this warehouse, it would be presumed that the accident arose from his want of care, unless he gave some explanation of the cause by which it was produced, which explanation the plaintiff could not be expected to give, not having the same means of knowledge.
Byrne, 2 H & C at ___, 159 Eng. Rep. at ___. While the facts of the present case closely resemble those in Byrne, our res ipsa law has evolved to be significantly different. The court in Byrne applied the res ipsa inference despite the fact it was clear that somebody in the owner's employ was responsible for the barrel's falling. This, according to the Byrne court, coupled with the defendant's control of the premises, was sufficient to establish the inference. Id. at ___. We do not propose that result here because it does not matter which of Menard's employees caused the insulation to fall; it is sufficient that one of its employees was responsible and that the employer would be liable under principles of respondeat superior. Under our general rule, as discussed above, direct evidence of the essential elements of the claim p
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