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Conner v. Menard10/21/2005
recludes the res ipsa inference.
The plaintiff seeks to avoid the application of this general rule by contending that submitting res ipsa together with direct evidence of the details of the incident is merely harmless error. In other words, if there is enough direct evidence to support the finding of specific negligence, why worry about adding a res ipsa instruction? Apparently, none of our cases have elaborated on this argument, but we think the answer is suggested by the dissent in Reilly. In that case, the court had instructed the jury on both specific negligence and res ipsa. The jury expressed doubt about whether it would find specific negligence. Nevertheless, it found for the plaintiff, and we affirmed. Reilly, 282 N.W.2d at 689, 697.
The dissent, however, observed:
I dissent from Division I and from the result because under this record the case should not have been submitted to the jury on the doctrine of res ipsa loquitur. The majority passes this off by saying it was a "close issue." Really there was no issue.
Any doubt about this was resolved by what happened during jury deliberations. The jury first returned a verdict saying it found for the plaintiff but "we find the defendant not guilty of negligence."
In the face of that finding, it was improper to send the jury back to deliberate further. The only conclusion the jury could draw was that it should find negligence which, of course, it promptly did.
None of this would have occurred if the court, as it should have done, had refused to submit the res ipsa count.
Reilly, 282 N.W.2d at 697 (LeGrand, J., dissenting).
We reject Brandy's harmless-error argument because, in a case like this, in which evidence of the "precise cause" of the injury is clear enough that a reasonable fact finder could find negligence but might choose not to, the addition of a res ipsa alternative is prejudicial. If the jury, on finding insufficient evidence of specific acts of negligence, were able to fall back on a res ipsa theory, this would in fact give the plaintiff two bites of the apple. In this case, we do not know the basis on which the jury assessed fault. The verdict simply found the plaintiff and defendant "at fault" twenty percent and eighty percent, respectively.
We agree with the court of appeals that the case must be remanded for a new trial.
DECISION OF COURT OF APPEALS AFFIRMED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED FOR NEW TRIAL.
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