Gicking v. Kimberlin

OPINION

This is an appeal from a judgment on jury verdict. We affirm.

Appellants sued respondents for damages as a result of a real property fire of unknown cause. During trial, appellant submitted both absolute and conditional res ipsa loquitur jury instructions. The court refused to give either instruction. The jury was given general negligence instructions. It rendered a judgment for respondents. Appellants' motion for a new trial was denied.

The issue on appeal is whether the court committed prejudicial error by refusing to give the res ipsa loquitur instructions. We find the evidence at trial did not warrant application of the res ipsa loquitur doctrine.

(1a) Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. (Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 793 [28 Cal.Rptr. 277]; Dorswitt v. Wilson (1942) 51 Cal.App.2d 623, 625 [125 P.2d 626].) It is based on a theory of "probability" where there is no direct evidence of defendant's conduct, (Horner v. Barber (1964) 229 Cal.App.2d 829, 832 [40 Cal.Rptr. 570, 8 A.L.R.3d 966]; Fowler v. Seaton (1964)61 Cal.2d 681, 687 [39 Cal.Rptr. 881, 394 P.2d 697]), permitting a common sense inference of negligence from the happening of the accident. (Bedford v. Re (1973) 9 Cal.3d 593, 597 [108 Cal.Rptr. 364, 510 P.2d 724]; Pappas v. Carson (1975)50 Cal.App.3d 261, 267 [123 Cal.Rptr. 343].) The rule thus assists plaintiffs in negligence cases in regard to the production of evidence.

The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and defendant was probably the person who was responsible. (Zentz v. Coca Cola Bottling Co. (1952)39 Cal.2d 436, 442, 446 [247 P.2d 344]; Moreno v. Sayre (1984)162 Cal.App.3d 116, 123 [208 Cal.Rptr. 444].) In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission. (Zentz v. Coca Cola Bottling Co.,supra, p. 443.)

(2a) A plaintiff must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff. (Ybarra v.Spangard (1944) 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258]; Moreno v. *Page 76 Sayre, supra, 162 Cal.App.3d 123-124.) Respondents contend appellants have failed to fulfill the second condition that the fire was caused by an instrumentality within their exclusive control.1