June 16, 2003

By Steven P. Garmisa
Hoey & Farina
sgarmisa@hoeyfarina.com

The "exclusive control" requirement presents difficult questions when a tort plaintiff invokes the doctrine of res ipsa loquitur against multiple defendants who had consecutive control.

Reversing the dismissal of a res ipsa claim, the Illinois Appellate Court concluded that a complaint alleged a valid cause of action based on consecutive control. Collins v. Superior Air-Ground Ambulance Service Inc., 2003 Ill. App. LEXIS 526 (1st Dist., April 29).

Eighty-three-year-old Laura Collins was injured while in the care of either Superior Air-Ground Ambulance Service Inc. or Alden Wentworth Rehabilitation and Health Care Center Inc., a nursing home. Collins, who lost a leg to diabetes, couldn't talk because of a stroke and was fed through a tube, was placed in a nursing home for five days while her daughter was out of town.

When the ambulance service returned Collins to her daughter's home, Collins was dehydrated and her remaining leg was broken.
Unable to speak, Collins (who subsequently died) couldn't say whether she was injured while in the nursing home or when she was being transported back and forth.

Count 1 alleged statutory claims against the nursing home. The second count, against both the nursing home and ambulance service, invoked the doctrine of res ipsa loquitur.

The trial judge dismissed count 2 and certified the order for immediate appeal.

"In its order," Justice Margaret Stanton McBride of the 1st District Appellate Court explained, "the trial court found that because the defendants were in control of different instrumentalities at different times, res ipsa loquitur could not apply."

Delivering a unanimous opinion reversing the trial court, McBride recounted (with some omissions):

"We begin our discussion with a statement concerning the doctrine of res ipsa loquitur and its purpose.

"Our Supreme Court said in Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446 (1965): 'When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care. This in essence is the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.' "

The court also observed: "Because Illinois requires fact pleading, res ipsa loquitur is often pleaded as a separate claim and therefore has sometimes been referred to as a cause of action. Nevertheless, res ipsa loquitur is simply a rule of evidence relating to the sufficiency of plaintiff's proof."

"In Gatlin v. Ruder, 137 Ill.2d 284 (1990)," McBride continued, "the Supreme Court, quoting Spidle v. Steward, 79 Ill.2d 1, 10 (1980), stated: 'The res ipsa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant's exclusive control.' "

The Supreme Court's analysis in Gatlin was key on appeal.
"In Gatlin v. Ruder, cited above, the plaintiff-mother filed a negligence action on behalf of her infant child against two defendants, Bernard Ruder, an obstetrician, and Riverside Medical Center, in connection with injuries sustained by the child during or immediately after his birth.

"The facts revealed that Ruder was directly involved in delivering the child. After the delivery, the child was immediately admitted to the nursery at Riverside. Three hours after delivery, a notation was made on the child's medical chart that he had several large scratches and a bruise on the top of his head. Several days later, an X-ray revealed a fracture in the infant's skull. The child's cerebral palsy was, according to one doctor, a result of the skull fracture.

"The plaintiff later amended her complaint to include a count based upon res ipsa loquitur. Ruder filed a motion for summary judgment contending that there was no evidence that he acted negligently. The trial court agreed with Ruder and granted Ruder's motion for summary judgment on that ground.

"During subsequent discovery, a medical school professor was deposed. Based on the professor's testimony, the plaintiff filed a motion to vacate the summary judgment motion which was denied. The Appellate Court affirmed the trial court's ruling on the motion to vacate, and the plaintiff appealed.

"On review, the Supreme Court reversed. The court held that the plaintiff need only present evidence on each of the res ipsa loquitur requirements to create an issue of material fact, and having done so, the plaintiff's motion to vacate Ruder's motion for summary judgment should have been granted.

"Regarding the first element, the court noted that the plaintiff's evidence established that the plaintiff's injuries would not have occurred absent negligence.

"Concerning the second element, the court stated: 'The second element -- defendant's exclusive control over the instrumentality which caused the injury -- is more problematic because two defendants are involved. The Appellate Court held: "[The plaintiff] failed to establish that it is more probable that Dr. Ruder caused his injuries, and not the hospital personnel." This statement, however, does not correctly state [the plaintiff's] burden of proof on a motion for summary judgment. [The plaintiff] only had to present enough evidence to raise an issue of fact as to whether Ruder had control over the instrumentality which caused [the plaintiff's] injuries.'

"The plaintiff argued and the court agreed that the plaintiff suffered his injuries at the hand of either Ruder during the delivery or Riverside's employees in the nursery immediately after the delivery. By presenting evidence on each of the res ipsa loquitur requirements, the court determined that the plaintiff had presented sufficient circumstantial evidence from which a jury could infer negligence.

"Thus, Gatlin supports a negligence claim under the doctrine of res ipsa loquitur where a plaintiff presents some evidence that the injuries could have occurred at the hands of a doctor delivering a baby or at the hands of hospital personnel while the baby was being cared for in the nursery."

With the Collins appeal, McBride noted, "we are evaluating whether count 2 of plaintiff's complaint states a cause of action, not whether sufficient evidence was presented to avoid summary judgment."

"In Gatlin," for example, "the court noted that satisfying the second prong -- defendant's exclusive control over the instrumentality -- was problematic because there were two defendants. Nonetheless, the court found that the plaintiff had presented enough evidence to raise an issue of fact as to whether Ruder or Riverside had control over the instrumentality causing the injury.

"Based on the reasoning in Gatlin," McBride concluded, "we find that plaintiff has sufficiently alleged Superior and/or Alden negligently moved or handled Laura Collins, thereby causing injury, and the inference of negligence under res ipsa loquitur can arise from these pleaded facts."

Among the other cases that supported the Appellate Court's decision, McBride pointed to Kolakowski v. Voris, 83 Ill.2d 388, 415 N.E.2d 397, 47 Ill.Dec. 392 (1980). That case involved a medical malpractice claim -- based on res ipsa loquitur -- against several doctors and Mercy Hospital.

"Mercy moved for summary judgment, which was granted by the trial court and the Appellate Court reversed. On appeal to the Supreme Court, Mercy, among other things, claimed that res ipsa loquitur was inapplicable because it did not have exclusive control over the injuring instrumentality, a requirement for applying the doctrine.

"Quoting the Supreme Court of California's decision to apply res ipsa loquitur in Ybarra v. Spangard, 25 Cal.2d 486, 490-92, 154 P.2d 687, 689-90 (1944), our Supreme Court stated: 'The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other.... It is difficult to see how the doctrine can, with any justification, be so restricted in its statement as to become inapplicable to a patient who submits himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used in his treatment.

" 'Without the aid of the doctrine a patient who received permanent injuries of a serious character, obviously the result of someone's negligence, would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.

" 'The control, at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation.'

"Relying upon this language," McBride explained, "the court found that the plaintiff, at the time of the alleged injury, was placed in the care and custody of the named defendants. The court also rejected Mercy's theory that whenever a doctor acting in the capacity of an independent contractor participates in a surgery in a defendant hospital, the element of exclusive control by the hospital ceases. At the time of surgery, each owed an independent duty to the patient and exercised concurrent control over the operation and equipment. As a result, the court found that the control necessary to apply res ipsa loquitur had been met and that the burden shifted to the hospital to dispel the inference of negligence."

Applying this analysis to the Collins case, McBride concluded that the 83- year-old woman "was placed in the care and custody of the named defendants. The control, at one time or another, of one or more of the instrumentalities that might have harmed plaintiff was in the hands of each defendant here. While plaintiff's decedent in the instant case was not rendered unconscious during an operation, she lacked the knowledge, control and ability to identify the injuring instrumentality. As in Kolakowski, Superior and Alden each owed a duty to Laura Collins. Each exercised 'consecutive' control over her care, first Superior, then Alden, and then Superior again. We, too, think the burden of initial explanation rests with defendants. Therefore, we find that the element of control necessary for the application of res ipsa loquitur was pleaded in the instant case."