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Balfour v. Kimberly Home Health Care7/12/2005
s the doctrine is inapplicable to the facts of this case.
Appellants' App. at 12. The Balfours filed a motion to correct error, which the trial court denied. This appeal ensued.
DISCUSSION AND DECISION
Standard of Review
When reviewing summary judgment, this court views the same matters and issues that were before the trial court and follows the same process. Estate of Taylor ex rel. Taylor v. Muncie Med. Investors, L.P., 727 N.E.2d 466, 469 (Ind. Ct. App. 2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the non-moving party. Jesse v. Am. Cmty. Mut. Ins. Co., 725 N.E.2d 420, 423 (Ind. Ct. App. 2000), trans. denied. Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., Inc., 727 N.E.2d 790, 792 (Ind. Ct. App. 2000).
We note that the trial court entered findings and conclusions in support of summary judgment. Although we are not bound by the trial court's findings and conclusions, they aid our review by providing reasons for the trial court's decision. See Ledbetter v. Ball Mem'l Hosp., 724 N.E.2d 1113, 1116 (Ind. Ct. App. 2000), trans. denied. If the trial court's entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Id.
Issue One: Res Ipsa Loquitur
The Balfours contend that the trial court erred when it concluded that the doctrine of res ipsa loquitur is inapplicable to the facts underlying their negligence claim. This court recently explained the doctrine of res ipsa loquitur as follows:
The doctrine literally means "the thing speaks for itself." Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury . The doctrine operates on the premise that negligence, like any other fact or condition, may be proved by circumstantial evidence. To create an inference of negligence, the plaintiff must establish: (1) that the injuring instrumentality was within the exclusive management and control of the defendant or its servants, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care. In determining if the doctrine is applicable, the question is whether the incident more probably resulted from defendant's negligence as opposed to another cause. A plaintiff may rely upon common sense and experience or expert testimony to prove that the incident more probably resulted from negligence. To invoke res ipsa loquitur, the plaintiff must demonstrate that the defendant had exclusive control of the injuring instrumentality at the time of injury.
Rector v. Oliver, 809 N.E.2d 887, 889-90 (Ind. Ct. App. 2004), trans. denied (citations omitted, emphases added).
The element of exclusive control is a broad concept which focuses on who has the right or power of control and the opportunity to exercise it, rather than actual physical control. Gold v. Ishak, 720 N.E.2d 1175, 1181 (Ind. Ct. App. 1999). Exclusive control is satisfied if the defendant had control at the time of the alleged negligence. Id. Exclusive control may be shared control if multiple defendants each have a non-delegable duty to use due care. Id. In proving the element of exclusive control, the plaintiff is not requi
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