E-Alert Case Updates
Plaintiff Failed to Establish Elements of Res Ipsa Loquitur in Case Involving Fall Off of Mobility Scooter
Susan Cohen v. Veolia Transportation Services, Inc
In a recent unreported opinion, the Court of Special Appeals addressed the application of the res ipsa loquitur doctrine in a case involving an individual injured when the motorized scooter on which she was riding tipped over inside of a mobility van.
In 2011, Plaintiff, Susan Cohen, was recovering from hip surgery and was only able to move around through use of a motorized scooter. On September 9, 2011, Plaintiff hired Defendant, Veolia Transportation Services, to transport her and her son in a mobility van. Plaintiff testified that, due to a brace she was wearing, she could not fit into the seats of the van and was instead forced to remain seated on her scooter for the vehicle trip. She admitted, however, that the manual that came with her scooter indicated that it was dangerous to ride in a moving vehicle while seated on the scooter. Plaintiff’s son testified that, prior to the vehicle trip in question, he observed the driver of the van lock straps on the front and back of the scooter to secure it to the floor of the van. Her son, however, could not directly see how the straps were operated, and no further evidence regarding the straps was presented. At some point during the vehicle trip, Plaintiff’s scooter tipped over inside the mobility van, and Plaintiff was injured.
Plaintiff filed a lawsuit against Defendant, alleging that Defendant’s negligence had proximately caused her injuries. At trial, due to the lack of direct evidence of Defendant’s negligence, Plaintiff sought to apply the res ipsa loquitur doctrine to establish her claim. At the close of Plaintiff’s case, Defendant moved for judgment, arguing that res ipsa loquitur should not be applied in this case. The trial court agreed with Defendant and granted its motion for judgment. Plaintiff appealed.
The Court of Special Appeals affirmed. Judge James R. Eyler (Retired, Specially Assigned), writing for the Court, reiterated the three elements that a plaintiff must establish under the res ipsa locquitur doctrine: (1) an accident of a kind that does not ordinarily occur absent negligence; (2) that was caused by an instrumentality exclusively within the defendant’s control; (3) that was not caused by an act or omission of the plaintiff.
As to the first element, the Court was held that nothing in the record demonstrated that a motorized scooter would not tip over absent an act of negligence. To the contrary, the scooter’s owner’s manual stated that the scooter could tip over if ridden while in a moving vehicle, or if the scooter was driven at a high speed, or if operated on uneven terrain, or even simply when carrying a passenger. Thus, there were multiple circumstances in which the scooter could tip over entirely absent the negligence of another.
Regarding, the second element, the Court noted that Plaintiff presented no evidence that the straps used to secure the scooter were within Defendant’s exclusive control. By way of illustration, the Court cited to Smith v. Kelly, 246 Md. 640, a case in which the Court of Appeals held that res ipsa loquitur did not apply to a washing machine owned by a laundromat, as members of the public also used the washing machine. Analogously, other individuals could have used, and potentially damaged, the straps in the van. Moreover, Plaintiff presented no evidence regarding the strap apparatus itself and how it was supposed to be operated. When such evidence is at issue and readily available to a plaintiff, the failure to present that evidence may preclude the plaintiff’s reliance on res ipsa loquitur. See D.C. v. Singleton, 425 Md. 398, 415 n.7 (2012).
Finally, as to the third element, the Court noted that the scooter’s owner’s manual indicated that it should not be ridden while in a motor vehicle. Because Plaintiff was riding the scooter contrary to the instructions in the owner’s manual, the Court believed that Plaintiff may have contributed to the tipping. Under these circumstances, Plaintiff failed to demonstrate that res ipsa loquitur was applicable. In the absence of any other evidence sufficient to support Plaintiff’s case, the Court of Special Appeals concluded that the trial court did not err in granting Defendant’s motion for judgment.
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