December 2011
The Oregon Court of Appeals recently decided two cases addressing the legal doctrine res ipsa loquitur, to infer negligence against a storeowner for injuries suffered by a customer. Res ipsa loquitur is a rule of circumstantial evidence that allows a jury to infer negligence based on the nature of the accident. To prevail, a plaintiff must prove: 1) an injury, 2) the injury is of a kind that ordinarily does not occur in the absence of negligence, and 3) the negligence is “more probably than not” attributable to the defendant.
In Hammer v. Fred Meyer Stores, a customer was injured when the contents of a shelf containing large cartons of lemonade fell on her as she attempted to remove one carton. The storeowner argued that the customer’s use of res ipsa loquitur was inappropriate because she could not prove that Fred Meyer had exclusive control over the shelf due to its public location. In rejecting this argument, the Court noted that Fred Meyer was in charge of installing, handling, and moving the shelf, and there was no evidence that a third person had altered or tampered with the shelf.
However, in Hagler v. Coastal Farm Holdings, Inc., the Court rejected the use of res ipsa loquitur. The customer was injured when a post pounder fell onto her foot. The Court found that the use of res ipsa loquitur was inappropriate because other customers had the ability to access the post pounders, rendering the store’s control non-exclusive. Instead, the Court applied ordinary premises liability principles, finding that the evidence did not support that the display of post pounders “created an unreasonable risk to customers.”
Under these cases, the key in a premises liability action is the degree of control the storekeeper has over the object. If it is one that customers can manipulate, move, or pick up, res ipsa loquitur will likely not apply. However, if the store retains exclusive control over the object, res ipsa loquitur likely applies.
Thanks to Mary Anne Nash for writing this article.
