Wednesday, January 5, 2022

Pennsylvania Supreme Court Rules That a Plaintiff Can Rely on Both Concrete Evidence and Doctrine of Res Ipsa Loquitur to Prove Negligence in the Same Case

In the Pennsylvania Supreme Court decision of Lageman v. Zepp, No. 21 MAP 2021 (Pa. Dec. 22, 2021) (Op. by Wecht, J.), the Court thoroughly addressed the doctrine of res ipsa loquitur and its continuing validity in Pennsylvania.

The court noted that the American law translation of that phrase is “the thing speaks for itself.”

Justice Wecht noted in his Opinion that the doctrine of res ipsa loquitur has been recognized in Pennsylvania as allowing for a category of circumstantial evidence which may suffice to establish negligence where more specific and concrete evidence of the events leading up to the injury eludes even diligent investigation. 

In essence, the doctrine was noted to recognize that one may conclude by the exercise of common sense that an injury could not have occurred under certain circumstances but for the negligence of another person even where that negligence cannot be concretely proven. 

Justice Wecht opened his engaging Opinion with the example of a Plaintiff walking on a public street and passing a Defendant’s shop at which point a barrel of flour fell upon the Plaintiff from a window above, resulting in serious injuries to the pedestrian Plaintiff.  The Court noted that this set of facts represented a classic example of when the doctrine of res ipsa loquitur should be applied.

This Lageman case arose out of a medical malpractice action. The issue before the Pennsylvania Supreme Court was whether the doctrine of res ipsa loquitur is precluded in a case where the Plaintiff has allegedly introduced enough “direct” evidence of the Defendant's negligence such that the doctrine of res ipsa loquitur is not the only avenue towards a finding of liability.   In other words, whether the two (2) approaches to satisfying the Plaintiff’s evidentiary burden of proof are mutually exclusive. 

The Pennsylvania Supreme Court held that these avenues of satisfying the Plaintiff's burden of proof are not mutually exclusive and that, therefore, the doctrine of res ipsa loquitur may still apply even in a case where a Plaintiff has also produced direct evidence of negligence on the part of a Defendant.

In so ruling, the Majority of the Court noted that it has long been the law of Pennsylvania that a Plaintiff has no obligation to choose one theory of liability to the exclusion of another. The Court reasoned that permitting a Plaintiff to present direct evidence while simultaneously invoking the res ipsa loquitur doctrine will only disadvantage a Defendant as to whom the claims becomes more facially meritorious as more competent evidence emerges.

The Court did note that, a Plaintiff must still make out a prima facie case to support a res ipsa loquitur jury instruction. In other words, a Plaintiff must prove that he or she has been injured by a casualty of a sort that normally would not have occurred but for negligence on the part of a Defendant.

In this regard, the Court noted that the doctrine of res ipsa loquitur would obviously apply in the case of where a surgeon leaves a sponge in a patient and sews up the patient at the end of a surgery, an injury would seemingly not occur in the absence of negligence. 

Where, however, a jury is presented with two (2) versions of the event through conflicting evidence and may decide, based upon that evidence, what, in fact, occurred to lead to the injury, then perhaps the doctrine of res ipsa loquitur would not be applicable. 

Anyone wishing to review a copy of the Majority decision written by Justice Wecht may click this LINK.  The Concurring and Dissenting Opinion by Chief Justice Baer can be viewed HERE.  The Dissenting Opinion by Justice Saylor can be viewed HERE.

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP for bringing this case to my attention.

Source of image:  Photo by Karolina Grabowska from

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