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In a personal injury case, because there was a factual conflict, res ipsa loquitur did not apply. Morejon v. Rais Construction Company, 818 N.Y.S.2d 792 (2006)


Res ipsa loquitur is a Latin phrase, which means “the thing speaks for itself.” In order to prevail in a personal injury case, the plaintiff must show that the defendant’s negligent or wrongful actions cause the plaintiff’s injury. Ideally, the plaintiff would have access to direct evidence such as eyewitness testimony, but this is not always the case. In some instances, the only evidence that the plaintiff has is circumstantial evidence. In New York, the doctrine of res ipsa loquitur means that circumstantial evidence may be sufficient to prove liability if the injury was would not normally occur absent negligence. In Morejon v. Rais Construction Company, the plaintiff sought a summary judgement motion based on res ipsa loquitur

Fabio Pardo was working for Rais Construction on December 26, 1998, when while delivering materials to a private residence that was  undergoing renovation, a roll of roofing material fell from a roof at a construction site and hit Pardo in the head. Eventually, Pardo died. The plaintiff estate of Fabio Pardo filed a lawsuit against defendant Rais Construction Company alleging that Pardo was fatally injured at a construction job while working for Rais Construction because of Rais Construction’s negligence.

Cesar Rais testified that he had fired Pardo weeks before the alleged December 26 incident because Pardo had been experiencing serious headaches that posed a risk to his safety. Additional witnesses and evidence supported Rais’s testimony. Thus, Rais argued that they could not have been negligent with respect to Pardo since Pardo did not work for him at the time of his injury.

The plaintiff filed a motion for summary judgment on the basis of res ipsa loquitur on the issue of liability. The plaintiff argued that the circumstantial evidence they presented proved that Rais Construction was negligent.

The trial court granted the motion. The appellate court reversed, explaining that res ipsa loquitur could not be used as the basis for summary judgment. The estate appealed.

The court noted that a plaintiff may prevail in a negligence case on the basis of res ipsa loquitur if they are able to show three factors:

  1. That the incident that caused the injury does not typically occur without someone’s negligence,
  2. That the incident was caused by actions solely within the defendant’s control, and
  3. That the incident was not caused by any the actions of the plaintiff.

The New York Court of Appeals disagreed with Appellate Division’s conclusion that the doctrine of res ipsa loquitur may not be used to support summary judgement on the issue of liability in a negligence action. However, the court ultimately, affirmed the Appellate Division’s decision to deny summary judgement. The Court of Appeals denied summary judgement because there remained questions of fact precluding the granting of summary judgment.

The defendant Rais testified that he never left roofing materials on the roof of the house at the construction site.  He also testified that his crew was not working that the site that day. In fact, they had stopped work there three days before the incident, and the owner of the house testified that no one was working at the house that day. Rais also testify that he had not called the decedent into work that day or in the preceding weeks because the decedent has experienced severe headaches. The conflicting testimony from the plaintiff was that Fabio was working at that site on the day of the accident and that materials did fall from the roof and injured Fabio.

Because of this conflicting testimony, summary judgement was not appropriate and was denied.

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