Practice point: The Appellate Division affirmed the motion's court determination that res ipsa loquitur applies in
this action involving an accident that occurred, according to
plaintiff's testimony, when a garage door suddenly fell and struck him
on the head, since this is the type of event that does not normally
occur in the absence of negligence. Notwithstanding
defendants' contentions that others could have had access to the garage
door, plaintiff demonstrated sufficient exclusivity of control. Res
ipsa loquitur does not require sole physical access to the
instrumentality causing the injury and can be applied in situations
where more than one defendant could have exercised exclusive control.
Student note: A defendant's contradictory testimony concerning whether he was
present and whether he activated the garage door was insufficient to
warrant summary judgment dismissing the action as against him inasmuch as issues of credibility are not to be resolved on summary judgment.
Case: Hutchings v. Yuter, NY Slip Op 04988 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: The continuous treatment doctrine in a dental malpractice action.
