Tort Law

Keith A. Cutler, Esquire

Under the res ipsa loquitur doctrine, the relevant point in time for defendant’s control is the time of injury, not the time the negligent act was committed.  Green v. The Plaza in Clayton Condominium Association, et al., No. 98887 (Mo. App. E.D., October 1, 2013), Odenwald, J.

Plaintiffs were 11th floor residents of a condominium building. In 2008, their unit and personal property were damaged from a leaking pipe on the 16th floor.  Plaintiffs filed suit against the condo association for damage resulting from the leak. Plaintiffs also named the condo developer as a defendant, under the doctrine of res ipsa loquitur.  The condo developer moved for directed verdict, asserting that, because it ceded control of the building to the condo association in 2007, the pipe was not under its (the developer’s) control when the leak occurred in 2008. The trial court granted the directed verdict in favor of the developer, and plaintiffs appealed.

Held: Affirmed.
   One of the requirements of the doctrine of res ipsa loquitur is that the incident be caused by an instrumentality under the defendant’s control.   Plaintiffs argued that the issue of “control” should be determined from the point in time when the negligent act occurred.  The pipe was under the developer’s control when it was negligently installed; since the negligent installation was the alleged cause of the leak, plaintiffs maintained that the developer was liable under res ipsa loquitur.   The court of appeals, however, stated that the appropriate point in time to examine “control” over the instrumentality is not when the negligent act was committed, but when the injury occurred, “because that is when a negligence claim springs to life.”  Since the developer no longer had control over the leaking pipe at the time plaintiffs’ property was damaged, the developer could not be liable under the doctrine of res ipsa loquitur.