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By: Sean P. Kelly
In a recent Appeals Court decision, Kennedy v. Abramson, 100 Mass. App. Ct. 775 (2022), the Massachusetts Appeals Court reinforced the vitality of the doctrine of res ipsa loquitur as a means for plaintiffs to be heard in front of jury even where there is limited evidence of a prior defective condition or the cause of an accident. While the doctrine has been criticized by courts and commentators, Massachusetts recognizes that a plaintiff can rely on inferences and circumstantial evidence to prove the elements of a negligence claim.
The plaintiff in Kennedy filed a complaint alleging that “he was injured as a result of the presence of one or more dangerous/defective conditions” while having lunch on the outdoor deck of Sundancers restaurant on Cape Cod. The plaintiff pushed his plastic chair away from the table and one of its rear legs failed and the chair collapsed, throwing him backwards onto the deck. Sundancers’ employees testified that it was general practice to wipe down the deck chairs at the open and close of business each day and to notify the manager of any defect or wear and tear. Sundancers could not identify the employees who wiped down the deck chairs the morning of the accident or the previous night. Neither the plaintiff nor any of his companions could testify that the chair was in a hazardous condition or dangerous prior to the accident.
A Superior Court judge allowed the defendants’ motion for summary judgment on the grounds that the plaintiff had not presented any evidence that Sundancers was negligent or that the chair had been in a dangerous or defective condition that an employee should have discovered. The plaintiff argued that the chair was uniquely within the restaurant’s control until his use and thus the issue of the defendants’ negligence presented a jury question under the principles of res ipsa loquitur, which permits a jury to infer that the chair would not ordinarily have collapsed unless the defendants were negligent. The Appeals Court agreed and reversed summary judgment.
In the decision, the Appeals Court noted that Sundancers would be entitled to summary judgment only if no jury could reasonably conclude that Sundancers committed a breach of duty of care by failing to inspect and discover the defect before the chair collapsed beneath the plaintiff, as the “evidence readily permits the inference that the chair provided to the plaintiff was defective.”
“Res ipsa loquitur is an appropriate form of circumstantial evidence enabling the plaintiff in particular cases to establish the defendant’s likely negligence.” Restatement (Third) § 17 comment a, at 184. “As in any negligence case, the doctrine may be applied only if it is more likely than not that the defendant’s negligence caused the accident.” Kennedy, supra at 778 (internal citations omitted). “Put another way, an inference of negligence from nothing more than the accident itself may be reasonable, but only if other evidence, such as timely and thorough inspection of the instrumentality causing the accident, does not render the inference unreasonable.” Id.
The Appeals Court acknowledged that res ipsa loquitur has been applied to permit juries to infer negligence in several cases involving collapsing chairs. In those cases, however, the absence of evidence that the defendants conducted reasonable inspections of the instrumentality permitted the inference of negligence. In Kennedy, “the summary judgment record included evidence that Sundancers conducted some inspection of the deck chairs.” The Appeals Court conceded that the evidence of inspection “is perhaps stronger than in similar res ipsa loquitur cases,” but it was “not strong enough to establish, as a matter of law, that factors other than the defendants’ negligence more likely caused the plaintiff’s injury.” Therefore, “[w]ere this case to go to trial on the record before us, the jury would be permitted, but not required, to infer that Sundancers was negligent under the principles of res ipsa loquitur.”
The Appeals Court decision in Kennedy appears to have broadened plaintiffs’ ability to bring negligence claims supported only by circumstantial evidence under the principles of res ipsa loquitur, a doctrine previously seeming to be disfavored by the courts.