Res Ipsa Loquitur aka: Res Ipsa Loqitor | Res Ipsa Loquitur Definition Law Elements

Definition of res ipsa loquitur

The doctrine of res ipsa loquitur, as developed by the California courts, is applicable in an lawsuit to recover money damages for negligence when the plaintiff establishes three conditions/elements:

1. First, that it is the kind of [accident] [injury] which ordinarily does not occur in the absence of someone’s negligence;
   
   
2. Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant [originally, and which was not mishandled or otherwise changed after defendant relinquished control]; and
   
   
3. Third, that the [accident] [injury] was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of his injury [ BAJI (5th ed 1969) No. 4.00 (brackets in original).]

The presumed fact, in this context, is that ‘a proximate cause of the occurrence was some negligent conduct on the part of the defendant … .’ If the defendant introduces ‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,’ the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825–826.

Res ipsa for dummies: Simply stated, “Paula’s injury or harm would not had occurred if someone wasn’t negligent. Most res ipsa loquitor cases arise from medical malpractice. Many real examples are below. Here are some snippets:

• Doctor left a sponge in the patient’s stomach. Oops – res ipsa loquitor!
• Doctor performed surgery on the wrong leg. Oops – res ipsa loquitur!
• Hospital left the patient’s window open on the 5th floor, knowing the patient was suicidal; patient jumps. Res ipsa loquitor!
• Nurse left vial of Oxycontin in patient’s room knowing the patient was addicted to Oxycontin; patient overosed and… Res ipsa loquitor!
  
  

Example of Res Ipsa Loquitur

If a plaintiff automobile passenger sues the driver for injuries sustained in an accident, the defendant may determine not to contest the fact that the accident was of a type that ordinarily does not occur unless the driver was negligent. Moreover, the defendant may introduce no evidence that he exercised due care in the driving of the automobile. Instead, the defendant may rest his defense solely on the ground that the plaintiff was a guest and not a paying passenger. In this case, the court should instruct the jury that it must assume that the defendant was negligent. Cf. Phillips v. Noble, 50 Cal 2d 163, 323 P2d 385 (1958); Fiske v. Wilkie, 67 Cal App 2d 440, 154 P2d 725 (1945).

There are many examples below from real cases.

The doctrine has been codified under Evidence Code section 604.

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Evidence Code 646 Res Ipsa Loquitur; Instruction to Jury

Facts Where Res Ipsa Loquitur Applies

While the doctrine of res ipsa loquitur does not shift the burden of proof to the defendant and the plaintiff must still prove his case by a preponderance of the evidence, once a case has been made for the application of the doctrine the defendant must produce evidence sufficient to meet the inference of negligence by offsetting or balancing it. Griffin v. Sardella (Cal. App. 5th Dist. Aug. 25, 1967), 253 Cal. App. 2d 937, 61 Cal. Rptr. 834, 1967 Cal. App. LEXIS 2425.The introduction of evidence of specific acts of negligence does not deprive a plaintiff of the benefit of the doctrine of res ipsa loquitur unless the facts as to the cause of the accident and the care exercised by the defendant are shown as a matter of law, thus eliminating any justification for resort to the inference of negligence. Gherna v. Ford Motor Co. (Cal. App. 1st Dist. Nov. 25, 1966), 246 Cal. App. 2d 639.

In a negligence action, in order to justify an instruction on the conditions necessary for the res ipsa loquitur inference of negligence, a plaintiff need not demonstrate all the facts necessary to the inference, but he need only produce evidence sufficient to support findings that the requisite conditions are present. Diamond Springs Lime Co. v. American River Constructors (Cal. App. 3d Dist. Apr. 8, 1971), 16 Cal. App. 3d 581.

In medical malpractice cases in which the physician or surgeon has injected a substance into plaintiff’s body, the court should refuse a tendered res ipsa loquitur instruction based on the jury’s reliance on common knowledge to determine whether the accident is of a kind that would ordinarily not have occurred in the absence of someone’s negligence, where the medical facts, taken as a whole, clearly show that the procedure used was so unusual and complex that there could be no comprehension of it based on the common knowledge of the jury. Bardessono v. Michels (Cal. Dec. 29, 1970), 3 Cal. 3d 780.

Plaintiff is deprived of the benefit of the doctrine of res ipsa loquitur where he introduces evidence of specific acts of negligence and the facts as to the cause of the accident and the care exercised by defendant are shown as a matter of law. Springer v. Reimers (Cal. App. 1st Dist. Feb. 11, 1970), 4 Cal. App. 3d 325.

The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that in the light of past experiences it can be said it was probably the result of negligence by someone and that defendant is probably the one responsible. The three conditions for application of the doctrine are that the accident must be of a kind that ordinarily does not occur in the absence of someone’s negligence, the accident must be caused by an agency or instrumentality within the exclusive control of the defendant, and the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. The existence of one or more of these conditions is usually a question of fact for the jury. In a proper case, however, they all may exist as a matter of law. Sanchez v. Bay General Hospital (Cal. App. 4th Dist. Feb. 25, 1981), 116 Cal. App. 3d 776.

The doctrine of res ipsa loquitur is applicable where the injury to the plaintiff is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. The injury must be of a kind which ordinarily does not occur in the absence of someone’s negligence; it must be caused by an agency or instrumentality within the exclusive control of the defendant; and it must not have been due to any voluntary action or contribution on the part of the plaintiff. The existence of one or more of these conditions is usually a question of fact for the jury. McKinney v. Nash (Cal. App. 3d Dist. June 16, 1981), 120 Cal. App. 3d 428.

In a case in which plaintiff fell from an extension ladder provided by a painting contractor and was injured, the trial court did not err by concluding that the evidence before it did not show all three conditions of the res ipsa loquitur presumption were satisfied. There was no evidence showing what had occurred or that plaintiff was free from negligence himself. Vebr v. Culp (Cal. App. 4th Dist. Oct. 28, 2015), 241 Cal. App. 4th 1044.

Because (1) a patient failed to present any evidence that the patient’s injuries were of a kind that did not ordinarily occur in the absence of negligence of a physician and/or hospital, or that the injuries were caused by an instrumentality within their exclusive control, and (2) none of the alternative explanations for the patient’s injuries was inherently more probable than the others, the doctrine of res ipsa loquitur under Ev C § 646 did not apply and the physician and hospital were entitled to summary judgment under CCP § 437c. Elcome v. Chin (Cal. App. 4th Dist. July 8, 2003), 110 Cal. App. 4th 310.

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Probability of Negligence

Though the particular injury suffered by a patient after certain medical treatment is something that rarely occurs, this fact does not in itself prove that the injury was probably caused by the negligence of those in charge of the treatment. Campos v. Weeks (Cal. App. 2d Dist. Oct. 18, 1966), 245 Cal. App. 2d 678.

Where the anaphylactic reaction suffered by plaintiff-patient did not result from her doctor’s lack of skill in making a hypodermic injection or from any defect in the penicillin administered, but was caused by the penicillin itself, the situation was plainly not one where common knowledge among laymen, that serum injections do not ordinarily cause trouble unless unskillfully done or there is something wrong with the serum, could provide the necessary foundation for application of the res ipsa loquitur doctrine. Campos v. Weeks (Cal. App. 2d Dist. Oct. 18, 1966), 245 Cal. App. 2d 678.

In an action to recover damages for a fire in a hay-filled barn into which defendant backed his truck to deliver additional hay, where there was no evidence that any act by plaintiff contributed to the cause of the fire and it was shown that the barn, the hay, and the truck were within the exclusive control of defendant at the time the fire was discovered, the res ipsa loquitur doctrine applied, since fires do not ordinarily occur during the loading or unloading of bales of hay in a barn, absent someone’s negligence. Seeley v. Combs (Cal. Aug. 15, 1966), 65 Cal. 2d 127.

A two-car collision at an unobstructed intersection ordinarily does not occur absent someone’s negligence; an inference properly arises that someone failed to use due care in operating the vehicles involved. Cordova v. Ford (Cal. App. 1st Dist. Nov. 7, 1966), 246 Cal. App. 2d 180, 54 Cal. Rptr. 508.

The condition for res ipsa loquitur requiring the accident to have been of a kind which ordinarily does not occur in the absence of someone’s negligence is satisfied if the balance of probabilities, based on either the evidence or experience common to the community, points to the negligence of defendant; such condition was satisfied where an automobile, properly driven for only 1,600 miles, suddenly developed a fire in the engine compartment, and especially where there was conflicting evidence that it started through a short in the engine wiring. Gherna v. Ford Motor Co. (Cal. App. 1st Dist. Nov. 25, 1966), 246 Cal. App. 2d 639.

The likelihood of a negligent cause for injury is increased if the low incidence of accidents, when due care is used, is combined with proof of specific negligent acts of a type that could have caused the injury; when those two facts are proved, the likelihood of a negligent cause may be sufficiently great that a jury may properly conclude the accident was more probably than not the result of someone’s negligence. Clark v. Gibbons (Cal. Apr. 21, 1967), 66 Cal. 2d 399.

In a medical malpractice action based on plaintiff’s anaphylactic reaction to a hypodermic injection of penicillin given by defendant, the conclusion of defendant’s lack of negligence was dictated by the testimony of three doctors that penicillin can and does produce anaphylactic shock or reaction and by the failure of any of them to indicate that such occurrence could in any way be attributed to anyone’s negligence. Campos v. Weeks (Cal. App. 2d Dist. Oct. 18, 1966), 245 Cal. App. 2d 678.

To constitute a res ipsa loquitur situation where the question whether the accident was probably the result of negligence is not a matter of common knowledge among laymen, such as one involving the inadvertent suturing of a ureter in a hysterectomy operation, such probability must be based on expert testimony, not in any particular language, but sufficient to support an inference of negligence from the happening of the accident alone. Tomei v. Henning (Cal. Sept. 18, 1967), 67 Cal. 2d 319.

The trial court did not err in granting the motion for a directed verdict against a hospital in a wrongful death action against it by the children of a patient who died after a cervical laminectory performed on her in the hospital, where the evidence established as a matter of law the three conditions required for a presumption of negligence on the part of the hospital’s nursing staff under the res ipsa loquitur doctrine, and the hospital failed to carry its burden of producing sufficient evidence to sustain a finding that either the accident resulted from some cause other than its negligence or that it exercised due care in all possible respects wherein it might have been negligent. As to all seven of the possible medical causes of the patient’s death identified by the hospital’s medical expert witness, there was uncontroverted evidence of negligence on the part of the hospital’s nursing staff as a proximate cause of the patient’s “brain” death. As to the cause of the patient’s “actual” ultimate death, the facts were uncontroverted that the ultimate death was also proximately caused by negligence on the part of the nursing staff relating to the matter of the patient’s tracheostomy tube. Sanchez v. Bay General Hospital (Cal. App. 4th Dist. Feb. 25, 1981), 116 Cal. App. 3d 776.

The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by negligence of those in charge of the operation. Belshaw v. Feinstein (Cal. App. 1st Dist. Feb. 8, 1968), 258 Cal. App. 2d 711.

The application of doctrine of res ipsa loquitur may be justified in rear-end collision cases where the rear car has collided with a stopped, stationary, or parked vehicle. Pittman v. Boiven (Cal. App. 4th Dist. Mar. 6, 1967), 249 Cal. App. 2d 207.

In medical malpractice cases, permitting an inference of negligence to be drawn solely upon evidence that a particular accident rarely occurs when due care is exercised would place an undue burden on the medical profession and would discourage procedures which may involve inherent risks even when due care is used, but evidence of rarity, together with some other evidence indicating negligence, may warrant a conditional res ipsa loquitur instruction, particularly if the injury resulted from a commonplace procedure rather than from a complex or unusual operation. Fraser v. Sprague (Cal. App. 4th Dist. Mar. 18, 1969), 270 Cal. App. 2d 736.

In action for injuries allegedly arising out of performance of myelogram, granting of nonsuit as to defendant doctor was erroneous where there was evidence from which the jury could have inferred that injury suffered by plaintiff ordinarily does not occur in course of myelogram if the needle is carefully inserted and available safeguards are employed, as well as evidence sufficient to require the issue of proximate cause of plaintiff’s injuries to be submitted to the jury. Berkey v. Anderson (Cal. App. 2d Dist. Nov. 18, 1969), 1 Cal. App. 3d 790.

Common knowledge affords reasonable support for the inference of negligence where a man standing on top of a trailer truck falls to the ground, since such an accident does not ordinarily occur unless someone has been negligent. Springer v. Reimers (Cal. App. 1st Dist. Feb. 11, 1970), 4 Cal. App. 3d 325.

To determine whether the probability of negligence appears from the happening of an accident, one may rely on common knowledge among laymen. Springer v. Reimers (Cal. App. 1st Dist. Feb. 11, 1970), 4 Cal. App. 3d 325.

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Circumstance Causing Plaintiff’s Harm Must Be Under Defendant’s Control

In a personal injury action arising out of a two-car collision at an unobstructed intersection, the second condition for application of the res ipsa loquitur doctrine, that is, an accident caused by an instrumentality within the defendant’s exclusive control, was not established, since the cars of both plaintiff and defendant were instrumentalities involved and plaintiff was in exclusive control of her own car. Cordova v. Ford (Cal. App. 1st Dist. Nov. 7, 1966), 246 Cal. App. 2d 180.

The res ipsa loquitur condition of defendants’ exclusive control of the instrumentality was satisfied, as against the manufacturer and franchised dealer, where an almost new automobile caught fire after it had been sold plaintiff, been in his continuous possession except for brief periods when the engine was serviced by the dealer, and had nothing else done to it except for servicing with gas, oil and water, and where plaintiff testified that the instrumentality had not been changed or mishandled after relinquishment by defendants. Gherna v. Ford Motor Co. (Cal. App. 1st Dist. Nov. 25, 1966), 246 Cal. App. 2d 639.

The condition for res ipsa loquitur requiring the accident to have been caused by an agency or instrumentality within the exclusive control of defendant is liberally construed, and is satisfied where the accident occurs after he has relinquished control and there is evidence, conflicting or otherwise, that supports a reasonable inference that, in the interim, the instrumentality has not been changed or mishandled. Gherna v. Ford Motor Co. (Cal. App. 1st Dist. Nov. 25, 1966), 246 Cal. App. 2d 639.

In a premises liability action to recover for injuries sustained in an accidental fall from a bleacher seat, the res ipsa doctrine did not apply and the court correctly refused any instruction on such doctrine, where the facts were undisputed as to how the accident happened, the care exercised by defendants, and the condition of the bleachers, and where there was no room for resort to inference as to what defendants did or did not do. Akins v. County of Sonoma (Cal. July 28, 1967), 67 Cal. 2d 185.


A jury could infer from testimony that a trailer truck suddenly jerked or moved that it was more probable than not that defendant driver was responsible for plaintiff’s fall from the top of the truck trailer, and such a showing would establish that the instrumentality or thing that caused the accident was the trucking rig where it was admitted that defendant had exclusive control of the truck and its movements. Springer v. Reimers (Cal. App. 1st Dist. Feb. 11, 1970), 4 Cal. App. 3d 325.

In a personal injury action, where the court applied the doctrine of res ipsa loquitur, a finding of greater probability that defendant’s negligent conduct caused the accident was supported by the court’s determination that the door involved in the accident was under the exclusive control of the defendant. Dennis v. Carolina Pines Bowling Center (Cal. App. 2d Dist. Feb. 7, 1967), 248 Cal. App. 2d 369.


Defendant failed to demonstrate as a matter of law that the backing of his truck into the small open area of a hay-filled barn was not a proximate cause of the fire then started in the barn, as found by the court under the res ipsa loquitur doctrine, by pointing out that the fire started on the right side of the truck while the exhaust pipe and muffler of the truck were near the left side, since gases being forced out of the exhaust might blow hay fragments in any direction, or by pointing to the possibility of hay being ignited by spontaneous combustion, without showing that spontaneous combustion occurs in a cleared area such as that between the truck and the stacked hay. Seeley v. Combs (Cal. Aug. 15, 1966), 65 Cal. 2d 127.


In an action for personal injuries sustained by a worker who fell when the handle came off of a railroad boxcar door he was attempting to close, the trial court properly refused plaintiff’s request for jury instructions on the doctrine of res ipsa loquitor, where defendant, the owner of the boxcar, had parted with its possession four months prior to the accident and where four different carriers had continually used it until that time. Thus, the doctrine was inapplicable, since the accident was not caused by an instrumentality within defendant’s control. Bergman v. St. Louis Southwestern Ry. Co. (Cal. App. 5th Dist. Aug. 3, 1982), 134 Cal. App. 3d 696.

It could not be said that a fall sustained by a guest seated in the stern of a pleasure fishing boat when the boat decelerated after hitting a swell and dropping into a trough was under the exclusive control of defendant justifying an application of the doctrine of res ipsa loquitur in an action brought by the guest against defendant, where the instrumentality was twofold, an act of nature in the form of a sudden swell coupled with defendant’s very normal reaction of decelerating to minimize the impact, and where had defendant not decelerated on observing the swell immediately in front of his boat, and had he continued full speed the probabilities were strong that the two men seated in the stern would have been thrown by the sudden impact just as they were thrown by the boat striking the swell, by the deceleration, or by a combination of the two. Carrick v. Pound (Cal. App. 5th Dist. Oct. 8, 1969), 276 Cal. App. 2d 689.

In an action for damages by a patient against a manufacturer of tubing, used in heart catheterization procedure undergone by the patient and which “kinked” when positioned in the patient’s aorta, the doctrine of res ipsa loquitur was inapplicable where there was uncontradicted evidence that the condition of the tubing was changed after it left the manufacturer’s possession. Putensen v. Clay Adams, Inc. (Cal. App. 1st Dist. Nov. 20, 1970), 12 Cal. App. 3d 1062.

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Specific Facts & Example Cases

In an action by a water skier who was hurt when struck by defendants’ motorboat behind which he had been skiing and which had turned and was approaching him at the time of the accident, the refusal to instruct on the doctrine of res ipsa loquitur was prejudicial error where the verdict was for defendants, where the question of negligence was a close one, and where it could not be said as a matter of law that, had the instructions on res ipsa loquitur been given, the verdict would have been for defendants. Shahinian v. McCormick (Cal. May 14, 1963), 59 Cal. 2d 554.

In a premises liability action, it was not error to instruct the jury that the “mere fact that an accident happened, considered alone, does not prove that it was caused by negligence of anyone,” where it was not shown that defendants had violated any applicable safety regulations and where the doctrine of res ipsa loquitur did not apply. Akins v. County of Sonoma (Cal. July 28, 1967), 67 Cal. 2d 185.

When an absolute or unqualified res ipsa loquitur instruction is warranted by the undisputed facts, it is error to instruct the jury that “the mere fact that an accident happened, considered alone, does not give rise to an inference that either party was negligent.” Gagosian v. Burdick’s Television & Appliances (Cal. App. 1st Dist. Sept. 14, 1967), 254 Cal. App. 2d 316, 62 Cal. Rptr. 70.

In an action against a cola manufacturer and the owner of a store for personal injuries allegedly sustained by plaintiff when she was cut by flying glass from a cola bottle which broke as it was being picked up by plaintiff after falling to the floor in the store, plaintiff’s proposed res ipsa loquitur instructions were properly refused, where the bottle was not in the manufacturer’s control when the injury occurred and the bottle had been mishandled by being dropped on the floor, and where, thus, the evidence did not warrant the giving of an instruction on res ipsa loquitur as to the manufacturer. Davis v. Safeway Stores, Inc. (Cal. App. 2d Dist. Apr. 2, 1969), 271 Cal. App. 2d 365.

In a personal injury action arising out of a collision at intersecting hospital corridors between plaintiff, who was walking, and a cart being pulled by a hospital employee, it was reversible error to instruct the jury on res ipsa loquitur, where the evidence showed that plaintiff was in exclusive control of her actions as a pedestrian and did not exclude her conduct as being the responsible cause of the collision, where permitting the jury to infer negligence placed on unfair burden not cognizable in law on defendant, and where an examination of the entire cause including an examination of the evidence showed that error in giving the instruction resulted in a miscarriage of justice. Duncan v. Queen of Angels Hosp. (Cal. App. 2d Dist. Sept. 28, 1970), 11 Cal. App. 3d 665.

In a personal injury action arising out of plaintiff’s use of a stepladder purchased from defendant retailer, the trial court properly granted plaintiff’s motion for new trial on the basis of its failure to instruct the jury on negligence and res ipsa loquitur in addition to the instructions given on strict liability in tort, where the effect to be given to plaintiff’s use of the ladder in the mud a few days before the accident was one of the issues for the jury, which could have concluded, under traditional negligence instructions, that a ladder which would become weakened and dangerous after such minimal use involved an unreasonable risk of bodily harm, and could also have considered whether the exercise of reasonable care required the manufacturer to warn purchasers that the ladder should not be used on soft ground, where a res ipsa loquitur instruction would have focused consideration on the inferences that could be drawn from the accident itself as distinct from the inferences to be drawn, if any, from the expert testimony presented by both parties as to the condition of the ladder, and where it did not appear that instructions on the theory of negligence as well as on strict liability would be confusing to the jury. Jiminez v. Sears, Roebuck & Co. (Cal. Mar. 24, 1971), 4 Cal. 3d 379.

In an action against an electric power company for damages arising out of a fire allegedly caused by defendant’s negligence in permitting its power transmission line to come into contact with a tree, the trial court erred in giving a conditional res ipsa loquitur instruction that presented for the jury’s determination the questions whether the accident, if it occurred as alleged, was the kind that ordinarily does not occur in the absence of someone’s negligence, and whether it was caused by an agency or instrumentality in the exclusive control of the defendant. If the jury had found that the occurrence resulted from contact between defendant’s powerline and the tree limb, someone had to be negligent either by failing to keep the statutory clearance or by failing to insulate the wire and the probability that the fire was originated by some other means was ipso facto excluded by the instruction’s initial requirement that plaintiffs prove the contact. However, if the jury found that the fire was the result of such contact, it was rather improbable, if not impossible, that it would have reached a different result even if it had been instructed on res ipsa loquitur as a matter of law, and thus the giving of the erroneous conditional instruction could not have caused a miscarriage of justice. Scally v. Pacific Gas & Electric Co. (Cal. App. 1st Dist. Feb. 25, 1972), 23 Cal. App. 3d 806.

In an action for damages for personal injuries and injuries to property resulting from an explosion of gas coming from the gas service pipe in plaintiff’s home, an instruction on the doctrine of res ipsa loquitur as to the defendant gas company should not have been given, but the giving of it was not sufficiently prejudicial to constitute reversible error, as the verdict of the jury must be held to be a finding against the company as to its negligence in failing to report to the scene of the accident to repair whatever damage had resulted to its pipes or to remove the danger therefrom, within a reasonable time after it had been informed of the cave-in and washout of the street, although this company was free from negligence in all other respects. Gerdes v. Pacific Gas & Electric Co. (Cal. Dec. 1, 1933), 219 Cal. 459.

In an action for personal injuries sustained by a worker who fell when the handle came off of a railroad boxcar door he was attempting to close, the trial court properly refused plaintiff’s request for jury instructions on the doctrine of res ipsa loquitor, where defendant, the owner of the boxcar, had parted with its possession four months prior to the accident and where four different carriers had continually used it until that time. Thus, the doctrine was inapplicable, since the accident was not caused by an instrumentality within defendant’s control. Bergman v. St. Louis Southwestern Ry. Co. (Cal. App. 5th Dist. Aug. 3, 1982), 134 Cal. App. 3d 696.

Medical Malpractice Cases

In an action involving injury resulting from surgery not completed after the anesthesia terminated prematurely, a res ipsa loquitur instruction was proper where there was evidence that an anesthetist, using proper care and obtaining proper information, could have made the anesthetic last long enough, that the surgeon and anesthetist did not consult each other about the time needed for the surgery, that plaintiff’s injury was caused by premature termination of the anesthesia and the surgeon’s determination to terminate surgery though both doctors were aware it should be performed and completed as soon as possible, and that there was a reasonable method to handle the premature termination of anesthesia when it occurred. Clark v. Gibbons (Cal. Apr. 21, 1967), 66 Cal. 2d 399.

In malpractice action by woman against hospital, attending physician and anesthetist for causing spinal osteomyelitis alleged to have resulted from injections given to her by a nurse, the trial court erred in instructing the jury on the application of the doctrine of res ipsa loquitur, where the evidence established as a matter of law that the hospital was in exclusive control of the nurse who gave the injections alleged to have caused the injury, and that the injury was not due to voluntary action or contribution by the woman, but where the court placed those questions before the jury as issues of fact, when the jury should only have determined whether the injury was one that ordinarily would not occur in the absence of negligence. Furthermore, the error was prejudicial, since it was likely to mislead the jury and to become a factor in its verdict, as shown by its request to reread the hospital’s inadmissible answers to interrogatories stating that the attending physician was in control of the nurse who gave the injections. Rimmele v. Northridge Hosp. Foundation (Cal. App. 2d Dist. Mar. 17, 1975), 46 Cal. App. 3d 123.


In a medical malpractice action against a doctor and a hospital, the trial court erred in refusing a conditional res ipsa loquitur instruction against defendant hospital in connection with its postoperative care of plaintiffs’ decedent, where there was sufficient evidence to show that the injury was of a nature that ordinarily does not occur in the absence of negligence, where the hospital had failed to follow the doctor’s orders as to taking the decedent’s blood pressure, where the running of a blood count was unduly delayed by failure to follow the doctor’s orders for an immediate count, where a nurse failed to call the doctor when the decedent’s condition had definitely worsened, but called only the night supervisor, where a chart upon which physicians rely was inaccurately kept, and where the decedent was not transferred to the intensive care unit until some 45 minutes after the doctor had so ordered. Cline v. Lund (Cal. App. 1st Dist. Apr. 20, 1973), 31 Cal. App. 3d 755.


In a medical malpractice case based on defendant’s painful treatment of plaintiff’s sore shoulder and the subsequent paralysis of plaintiff’s head and shoulder muscles for which he was hospitalized and from which he would probably never completely recover, the trial court properly instructed the jury that if it found from expert testimony, common knowledge, and all the circumstances that the injury was more probably than not the result of negligence, it could infer negligence from the happening of the accident alone, where plaintiff’s condition prior to treatment was a common condition (tendonitis), and where the treatment was a simple procedure of injecting cortisone and a local anesthetic from which untoward results are extremely rare. Bardessono v. Michels (Cal. Dec. 29, 1970), 3 Cal. 3d 780.


In a malpractice action arising out of the breakage of plaintiff’s leg when she lifted it, while lying on a sofa about six days after defendant had removed a part of the bone by surgery, plaintiff was entitled to an instruction on res ipsa loquitur, where there was a conflict in the evidence as to the extent of the warning given by defendant to plaintiff concerning the care required of her with respect to the leg, and where there was sufficient evidence to support an inference of negligence on the part of defendant in failing to adequately advise plaintiff as to the care needed. Kerr v. Bock (Cal. July 8, 1971), 5 Cal. 3d 321.

In a medical malpractice action involving the inadvertent suturing of a ureter during a hysterectomy and in which no conditional res ipsa loquitur instruction was given, the fact that the jury found the surgeon not guilty of negligence established, not that they had rejected the evidence that could have supported a finding of negligence under the doctrine of res ipsa loquitur, but only that they could not identify any specific negligent conduct, and such an instruction would not have been superfluous, where, had it been given, the jury might reasonably have concluded that regardless of how the accident happened, or how it could have been avoided, its happening alone supported the inference of negligence. Tomei v. Henning (Cal. Sept. 18, 1967), 67 Cal. 2d 319.

In a dental malpractice action arising from the death of a patient who had aspirated a broken crown that defendant had dropped on her tongue, the trial court erred in refusing to give plaintiff’s requested jury instructions on res ipsa loquitur and conditional res ipsa loquitur. The steps that a dentist might have taken to prevent aspiration of a dropped object are not matters of common knowledge. Even so, a difference of medical opinion concerning the desirability of a particular medical procedure when several are available does not establish that the one used was negligent. However, in this case, plaintiff presented substantial evidence from which the jury could draw an inference of negligence. Plaintiff’s expert testified that defendant should have taken some precaution to prevent a dropped object from being aspirated and gave examples. The contradictory evidence presented by defendant did not preclude the jury from drawing the inference of negligence even though the court itself would not draw that inference. Where reasonable persons may differ as to the balance of probabilities, the court must leave the question to the jury. Further, although the occurrence leading to this action was rare, evidence of rarity, coupled with some other evidence indicating negligence, may warrant a conditional res ipsa loquitur instruction. This was such a case. Blackwell v. Hurst (Cal. App. 2d Dist. June 20, 1996), 46 Cal. App. 4th 939.

In a medical malpractice case arising out of an operation for removal of the lesser saphenous vein, the evidence was sufficient to entitle plaintiff to have the cause submitted to the jury under a conditional res ipsa loquitur instruction, where plaintiff suffered an injury to the peroneal nerve, where such injury occurred either during surgery performed by defendant or as a result of overtight bandaging by defendant following surgery, where an expert in vascular surgery testified that he had performed at least 1,000 such operations without injury to the peroneal nerve and had never heard of such an injury resulting from like operations, where the operation was relatively commonplace rather than complex or unusual, where, at the time of recommending surgery, defendant made no mention of risk of nerve injury, where expert testimony, as well as defendant’s own testimony, indicated the probability that proper surgical precautions were not taken, and where defendant furnished extended postoperative care and physical therapy treatments to plaintiff without charge. Fraser v. Sprague (Cal. App. 4th Dist. Mar. 18, 1969), 270 Cal. App. 2d 736.


In an action against a psychiatrist and a hospital for the death of a mentally disturbed patient who jumped from a second-story window when left alone in the room though he was known to be suicide prone, it was prejudicial error to refuse plaintiff’s request to give the qualified instruction that a plaintiff may properly rely on res ipsa loquitur although the decedent participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause, where the facts of the case supported a theory of liability based on a duty to protect the decedent from his own actions, voluntary or involuntary, where even in the absence of expert testimony describing the probability that the death resulted from negligence, the jury could competently decide that defendant breached his duty of care when there was a supportable conclusion that the cause of the accident was not inextricably connected with a course of treatment involving the exercise of medical judgment beyond the common knowledge of laymen, and where the giving of an erroneous instruction and the failure to give the correct one deprived plaintiff of proper application of the doctrine to the case, absent the error it was reasonably probable that a result more favorable to the plaintiff would have been reached. Meier v. Ross General Hospital (Cal. Oct. 4, 1968), 69 Cal. 2d 420, 71 Cal. Rptr. 903, 445 P.2d 519, 1968 Cal. LEXIS 251, limited, Adams v. City of Fremont (Cal. App. 1st Dist. Dec. 3, 1998), 68 Cal. App. 4th 243.

In a medical malpractice action in which plaintiff had lost a kidney following the inadvertent suturing of the ureter in two places during a hysterectomy operation, it was prejudicial error to refuse her requested conditional res ipsa loquitur instruction, where it was undisputed that the surgeon was responsible for the accident and that plaintiff did not contribute thereto, and where it was the expert opinion of a specialist in obstetrics and gynecology that, although there are unavoidable risks to the ureters in any hysterectomy, the suturing and closing the wound without exercising any technique to determine the condition of the ureters was not the exercise of proper care in such an operation, thus leaving the probability of negligence a question for the jury. Tomei v. Henning (Cal. Sept. 18, 1967), 67 Cal. 2d 319.