Even those with a cursory knowledge of the legal system understand that evidence is crucial to any case. But what most people do not know is that the absence of evidence can be just as important. O.C.G.A § 24-14-9 provides that “[i]n arriving at a verdict, the jury, from facts provided, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved.” (Emphasis added). One particular application of this principle is the Georgia doctrine of “res ipsa loquitur,” meaning “the thing speaks for itself.”
“Res ipsa loquitur is a rule of evidence to be applied in cases where there is no evidence of consequence showing negligence on the part of the defendant.” (Citation omitted.) Giannotti v. Beleza Hair Salon, Inc., 296 Ga. App. 636, 642 (2009). “The doctrine authorizes, but does not require, the jury to infer facts from the circumstances in which the injury occurred, thereby filling the evidentiary gap.” Id. Under the doctrine of res ipsa loquitur, an inference of negligence may arise if the plaintiff proves each of the following elements:
(1) the injury is of a kind that does not occur in the absence of someone’s negligence;
(2) the injury has been caused by an agency or instrumentality within the exclusive control of the defendant; and
(3) the injury must not have been due to any voluntary action or contribution on the part of the plaintiff.
Id. In other words, in order for the doctrine to apply, the Plaintiff must prove that whatever caused his or her injury was exclusively controlled by the Defendant, and but for the Defendant’s negligence, the Plaintiff would not have been injured. Some common examples of cases where res ipsa loquitor is applicable include a sponge being left inside a patient following surgery or a piano following from a window and landing on a pedestrian below. Both cases involve circumstances which typically would not occur unless someone was negligent.
Importantly, the doctrine of res ipsa loquitor is only applicable in cases where there is no evidence of consequence showing negligence on the part of the Defendant. Gresham v. Stouffer Corp., 144 Ga. App. 553, 553 (1978). The doctrine is inapplicable, however, when there is an intermediary cause which produced or could have produced Plaintiff’s injury or when the Plaintiff cannot prove the Defendant had exclusive control over the instrumentality. Harrison v. Golden, 219 Ga. App. 772, 774 (1995). Therefore, Defendants facing the application of res ipsa loquitor typically focus on two main defenses: (1) Defendant did not have exclusive control of the instrumentality that caused plaintiff’s injury and (2) Plaintiff’s injury was caused by Plaintiff’s own negligence.
I. Exclusive Control
Georgia courts have held that the exclusive control requirement may be met through two alternatives: (1) that the defendant “owned, operated, and maintained,” or (2) that the defendant “controlled, and was responsible for the management and maintenance” of the item or person that caused the harm. Evans v. Heard, 264 Ga. 239, 240, 442 S.E.2d 753, 754 (1994). Proving “exclusive control” can be extremely difficult, especially in cases involving an instrumentality that may be accessed by multiple people. For example, the Court of Appeals of Georgia has routinely held that a “defendant store does not retain exclusive control over the item [that allegedly caused the plaintiff’s injury] as a matter of law … where the uncontroverted evidence reflects that the item was within the reach of other customers.” Aderhold v. Lowe’s Home Centers, Inc., 284 Ga. App. 294, 295 (2007); see also Sams v. Wal–Mart Stores, 228 Ga. App. 314, 316 (1997); Metts v. Wal–Mart Stores, 269 Ga. App. 366, 368 (2004). In Westmoreland v. Walgreen Co., the most recent Court of Appeals of Georgia case involving the application of res ipsa loquitor, the Court considered a case where a customer of Walgreen’s was allegedly injured after glass bottles fell through a package and onto the floor of the store. 362 Ga. App. 119 (2021). The Court held that doctrine did not apply, as the undisputed evidence showed that the package had been placed on a shelf in a cooler and was readily accessible to other customers. Id. at 122.
On the other hand, the Court of Appeals of Georgia held that a restaurant did have exclusive control over a chair that collapsed under a customer where the restaurant was responsible its maintenance. Gresham v. Stouffer Corp., 144 Ga. App. 553, 553 (1978). Overall, the Court’s main consideration in assessing the applicability of res ipsa loquitur is whether the instrumentality causing the Plaintiff’s injury can be accessed, maintained, or tampered with by those other than the Defendant.
II. Plaintiff’s Fault
In typical negligence cases in Georgia, a Plaintiff’s own fault in causing an accident does not bar his or her recovery unless the finder of fact determines that the Plaintiff was more than 49% at fault for the accident. In cases where a Plaintiff intends to apply res ipsa loquitor, however, any fault on the part of Plaintiff renders the doctrine inapplicable. For example, in Giannotti v. Beleza Hair Salon, Inc., supra, the Court of Appeals of Georgia considered the application of res ipsa loquitor in a case involving a patron’s personal injury claims against a hair salon and cosmetologist. The patron alleged that the cosmetologist negligently performed hair-coloring procedures on the patron, causing the patron to suffer chemical burns. The Court found that the doctrine of res ipsa loquitor was not applicable because the record showed that approximately two weeks prior to her hair appointment, the patron applied two different coloring products to her hair. Id. at 642. According to the Court, such evidence raised the possibility that the products the patron used could have contributed to the injury she sustained. Id. at 642-43. In reaching this conclusion, the Court referenced Smith v. U-Haul Co. Georgia, 225 Ga. App. 356, 357 (1997), which held that the doctrine of res ipsa loquitor was inapplicable where there were issued of the Plaintiff’s contributory negligence. Giannotti, 296 Ga. App. at 643.
Georgia Courts have stressed that the complicated doctrine of “res ipsa loquitur should be applied with caution and only in extreme cases and is not applicable when there is an intermediary cause which could have produced the injury.” (Citation and Punctuation Omitted). Kmart Corp. v. Larsen, 240 Ga. App. 351, 352 (1999). Though the application of res ipsa loquitur is rare, it is important for Defendants, and in particular, business owners, to understand the ramifications of a doctrine that allows a Plaintiff to overcome a lack of evidence and still prove their case.
By: Katherine Barton