Practice point: Plaintiff, an employee of Keyspan/National Grid, allegedly was
injured when the staircase leading to the basement of defendant's
house collapsed as he was walking down the stairs to replace the water
heater. The Appellate Division determined that plaintiff failed to establish prima facie entitlement to
judgment as a matter of law. Since the staircase was constructed prior
to defendant's ownership, and defendant did not make
any alterations or repair to it, plaintiff did not satisfy the
second prong of the doctrine of res ipsa loquitur, which requires proof
of the defendant's exclusive control. Given that plaintiff's own expert opined that the
accident occurred either due to negligent construction or negligent
maintenance, plaintiff did not establish, by sufficiently convincing
circumstantial proof, that the inference of defendant's negligence is
inescapable.
Student note: A plaintiff must establish the following in order for the doctrine to
apply: (1) the event must be of a kind which ordinarily does not occur
in the absence of someone's negligence; (2) it must be caused by an
agency or instrumentality within the exclusive control of the defendant;
(3) it must not have been due to any voluntary action or contribution
on the part of the plaintiff.
Case: Bunting v, Haynes, NY Slip Op 01521 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue:A notary public's misconduct.
