November, 2010
High court applies res ipsa loquitur in premises liability case
by Andrew Bergh

For some reason, the meaning of res ipsa loquitur – “the thing speaks for itself” – has stuck with me since law school. (That, and “ipse dixit,” which means “he himself said it.”) But although it refers to something that is supposedly self-evident, the res ipsa loquitur doctrine, and even more so its applicability in a given case, can be confounding. Two months ago, however, in Curtis v. Lein, 169 Wn.2d 884 (2010), our state Supreme Court had absolutely no problem applying the doctrine to a premises liability case where the allegedly dangerous condition no longer existed.

Jack and Claire Lein raised thoroughbred horses at Willow Creek Farm in Sammamish. After buying the property in 1978, they made it their full-time residence two years later. The farm included a small pond that was mainly decorative but sometimes used for swimming by the Leins’ grandchildren. In the late 1980s, they had a wooden dock built over the pond to allow better access to its drainage pipe.

After selling the acreage in 2001, the Leins kept living there with their son and his family. That same year, they hired a farm manager, Michael Stewart, and gave him housing on the property. Steward lived on the premises with his girlfriend, Tabra Curtis, and their son.

The fateful day was April 25, 2004.

That’s when Curtis ventured out onto the wooden dock over the pond for the very first time. After just a few steps, the boards gave way and her left leg fell through the dock up to her hip, causing a hairline fracture to her left tibia.

The new farm owners intended to level the property so they could build a school. Aware of their plans, Claire Lein told Stewart to remove the dock after she learned about the accident. As a result, there was no evidence regarding the possible cause or causes of Curtis’s fall.

Curtis later sued the Leins and Willow Creek Farms, Incorporated, for damages in King County Superior Court, alleging that the wooden dock had been negligently maintained. The defendants eventually responded to her premises liability claim by moving for summary judgment.

Since the dock had been destroyed following her accident, there was no way Curtis could know – let alone prove – how or why the dock caused her fall. She thus opposed the summary judgment motion by relying on res ipsa loquitur, contending that a wooden dock doesn’t ordinarily give way unless the owner negligently failed to maintain it. Rejecting this argument, the trial court said res ipsa loquitur didn’t apply because other conceivable causes, including improper construction or defective materials, could’ve caused the fall.

In a published opinion, the Court of Appeals affirmed. Curtis v. Lein, 150 Wn. App. 96 (2009). While agreeing that wooden docks don’t ordinarily give way in the absence of negligence, the court said res ipsa loquitur couldn’t be used to infer that dangerous docks necessarily exhibit discoverable defects. Summary judgment was therefore proper, said the court, because Curtis had failed to prove the Leins knew or should’ve known of the dock’s faulty condition.

Against this background, the Washington Supreme Court accepted review to determine “whether summary judgment was properly granted as to the application of res ipsa loquitur in a premises liability suit.”

At the outset, the high court generally observed as follows:

The doctrine of res ipsa loquitur spares the plaintiff the requirement of proving specific acts of negligence in cases where a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant were not negligent. In such cases the jury is permitted to infer negligence. The doctrine permits the inference of negligence on the basis that the evidence of the cause of the injury is practically accessible to the defendant but inaccessible to the injured person.

The justices further explained that a plaintiff can rely on res ipsa loquitur if three elements are met:

• The accident or occurrence that caused the plaintiff’s injury wouldn’t ordinarily happen in the absence of negligence.

• The instrumentality or agency that caused the plaintiff’s injury was in the exclusive control of the defendant.

• The plaintiff didn’t contribute to the accident or occurrence.

The first element is satisfied, the court continued, if one of three conditions is present:

• When the act causing the injury is so “palpably negligent” that it may be inferred as a matter of law (e.g., amputating the wrong limb).

• When the “general experience and observation of mankind” teaches that the result wouldn’t be expected without negligence.

• When proof by experts in an esoteric field creates an inference that negligence caused the injuries.

The justices next reviewed the lower court rulings.

To satisfy the first element of the res ipsa loquitur doctrine, the court noted, Curtis had relied on the second condition – i.e., that general experience and observation teaches that a wooden dock doesn’t give way under foot unless it is negligently maintained. As mentioned above, while agreeing with this proposition, the Court of Appeals nonetheless affirmed summary judgment on the ground that Curtis couldn’t use res ipsa loquitur to infer actual or constructive notice. By a 9-0 margin, the high court rejected this analysis.

The Court of Appeals erred when it parsed out the inference of negligence that can be drawn from res ipsa loquitur. When res ipsa loquitur applies, it provides an inference as to the defendant’s breach of duty. [Citation omitted.] It therefore would apply an inference of negligence on the part of the Leins generally: what they knew or reasonably should have known about the dock’s condition is part of the duty that they owed to Curtis. What the Leins knew or reasonably should have known about the dock is exactly the sort of information that res ipsa loquitur is intended to supply by inference, if the inference applies at all. [Citation omitted.] The Court of Appeals erred when it held otherwise.

169 Wn.2d. at 892.

In reaching this conclusion, the high court relied on precedent almost 100 years old. In Penson v. Inland Empire Paper Co., 73 Wash. 338 (1913), the plaintiff-painter was hurt when scaffolding collapsed. There, the court held that res ipsa loquitur could be used to supply the necessary evidence of negligence, thereby shifting to the defendant the burden of proving that the faulty condition of the scaffolding was undiscoverable.

In the course of their de novo review, the justices also disagreed with the trial court’s conclusion that res ipsa loquitur didn’t even apply. The first element was met, said the court, because as the Court of Appeals had reasoned, wooden docks don’t normally give way if properly maintained. The second element was met because there was no evidence the dock was not in the exclusive control of the Leins. And the third element was met because it was undisputed that Curtis in no way contributed to the fall.

It’s important to remember that res ipsa loquitur only provides a permissive inference of negligence.

As with any other permissive evidentiary inference, a jury is free to disregard or accept the truth of the inference.

169 Wn.2d. at 895.

In this respect, the justices plowed no new ground. But though not precedent-setting, Curtis v. Lein serves as an important reminder that res ipsa loquitur is alive and well in the context of premises liability cases – and that when it applies, the defendant has the burden of proving that the allegedly dangerous condition wasn’t discoverable. While this burden-shifting doesn’t necessarily mean premises liability plaintiffs will prevail more often at trial, it certainly affords another basis, in an appropriate case, for opposing a defense motion for summary judgment.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.