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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, March 26, 2008

They Call Me Bruce?: Man Mistakenly Presents Res Ipsa Loquitur Argument In Case Based Upon Grocery Store Assault

If an article on a man's lawsuit against a grocery store is accurate, the man's attorney was inaccurate in seeking to recover against the store under the doctrine of res ipsa loquitur.  Carlton J. Ford has claimed that while he was leaving a Bruce's Market Basket in Texas, he was thrown to the ground by an employee and falsely imprisoned.  His attorney has claimed that, "Defendant's assault...was negligent...and was a proximate...cause of his injuries."  The article also indicates that Ford is claiming that Bruce's Market Basket is liable to him under the doctrine of res ipsa loquitur.

The essential elements of false imprisonment are "(1) willful detention; (2) without consent; and (3) without authority of law." Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).  Obviously, a detention cannot be both negligent and willful, so Johnson's claims of negligence and res ipsa loquitur, which is a way of proving negligence, cannot support his claim for false imprisonment.  Maybe, however, Ford is pleading in the alternative and claiming that the grocery store employee either intentionally falsely imprisoned him or that the employee and the store negligently restricted his movement.

Even in this latter case, however, the doctrine of res ipsa loquitur would be inapplicable.  Res ipsa loquitur (Latin for "the thing speaks for itself") is an evidentiary rule that a plaintiff can use when he has evidence that the defendant very likely injured him but cannot prove the particular manner in which the accident was caused. See Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston 2005).  Res ipsa loquitur is applicable only when: "(1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant." Id.  Thus, for instance, a shopper at a grocery store who is injured when boxes stocked on the top of a 9 foot shelf fall on his head could use res ipsa loquitur to get the question of negligence to the jury even if he couldn't sepcifically prove that the boxes fell because they were stocked improperly, the shelving was improperly installed, etc.  This would be the case because he could likely prove that boxes don't fall from grocery store shelves in the absence of negligence and that based upon the placement of the boxes only grocery store employees were the only people with acces to the boxes.  Res ipsa loquitur, however, would seemingly have no application to a case where the plaintiff is claiming that a grocery store employee restrained him, either intentionally or negligently.

-CM

http://lawprofessors.typepad.com/evidenceprof/2008/03/res-ipsa-shoppi.html

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