Present: All the Justices
JOANN E. LEWIS
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 960421 November 1, 1996
CARPENTER COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
T. J. Markow, Judge
In this tort action, the sole question presented on appeal
is whether the trial court correctly refused to apply the
doctrine of res ipsa loquitur.
In January 1995, appellant Joann E. Lewis, the plaintiff
below, filed this action against appellee Carpenter Company, the
defendant below, seeking recovery for personal injuries allegedly
sustained as the result of the negligent operation and
maintenance of defendant's truck, a tractor-trailer unit.
Upon completion of the plaintiff's case-in-chief during a
jury trial, the court sustained defendant's motion to strike the
evidence, ruling that the plaintiff had failed to establish a
prima facie case of negligence. The court rejected the
plaintiff's contention that res ipsa loquitur should be applied
to withstand defendant's motion to strike. The plaintiff appeals
the November 1995 summary judgment in favor of the defendant.
The plaintiff's evidence showed that, on September 9, 1994,
near 5:00 p.m., she was operating an automobile southbound in the
City of Richmond on Jefferson Davis Highway, and stopped at the
intersection with Hopkins Road in obedience to a red traffic
signal. The plaintiff's vehicle was in the left of three
southbound lanes.
At the same time, defendant's employee, Prince E. Rich, III,
was operating defendant's truck southbound on Jefferson Davis
Highway, and stopped in the center lane at the intersection.
Both vehicles were "first in line" at the signal.
According to the plaintiff, both vehicles moved forward when
the light changed to green. Before the plaintiff's automobile
"cleared Hopkins Road," she heard "a loud thump and a warning
screamed at her" by a passenger. "She immediately looked over
her right shoulder and saw defendant's tractor proceeding but it
had become separated from the trailer which was also moving
forward barely to her right." Believing the trailer "was angling
toward her" and fearing it would strike her vehicle, the
plaintiff, "in a panic move," steered hard to her left and
accelerated. "In so doing, she testified, she struck the
concrete median that was on her left with much force," causing
her injuries. There was no contact between the plaintiff's
vehicle and defendant's tractor or trailer.
The plaintiff's evidence about the maintenance of
defendant's truck was presented solely through defendant's
employee Rich, called by the plaintiff as an adverse witness. He
testified that early on the day in question he had driven the
tractor-trailer unit from defendant's place of business on
Jefferson Davis Highway to Baltimore, Maryland, making four
deliveries of freight within a 25-mile radius of Baltimore before
returning to Richmond in the late afternoon.
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Rich described the manner in which he had connected the
tractor to the loaded trailer at the defendant's premises before
he left Richmond. The employee, with six years' experience in
joining tractors and trailers, said the tractor has a part called
a "fifth wheel," mounted on the tractor's frame behind the cab.
The fifth wheel is a round, flat device containing a "slot"
opening to the rear. Built into the fifth wheel is a "locking
pin," a heavy steel bar. Mounted on the trailer's leading edge
is a vertical "pole" about three inches in diameter.
In order to connect the two pieces of equipment, the tractor
was backed against the stationary trailer, which was standing on
a "landing gear," causing the trailer pole to fit into the slot
of the fifth wheel. The fifth wheel's locking pin, which is
"spring triggered," came "across" with an audible "click" and
enclosed the trailer pole "like a cage," securing the trailer to
the tractor.
After the locking occurred, Rich performed a "series of
checks." Air lines were connected and a visual inspection was
made to verify that the locking device was properly seated. The
trailer's landing gear was "cranked up," the brakes on the
tractor were released, and the trailer brakes were left
"charged." The tractor was put "in gear" and an effort was made
to pull away from the trailer. If the locking "has not been done
right," the tractor "will pull right away" from the trailer; if
the locking has been properly done, "you can't pull away from
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it." On the day in question, the tractor would not pull away.
Rich further testified that he experienced no difficulty or
trouble with the "rig" at any time during the trip to Baltimore
and return. He permitted no one to operate the rig, he carried
no passengers, and allowed no one to "do anything with the rig or
the connection or the hookup."
Describing the incident in question, Rich testified he
travelled about 200 feet southbound from his stopped position at
the intersection and heard a noise. In an "almost panicked
reaction," he immediately "shut the tractor down, popped the
brakes on it, and jumped straight out the door" because he could
see the trailer had "come loose." The tractor was stopped in the
center lane. He ran back to the trailer, which had stopped
"dead" in the center lane about 30 feet behind the tractor. Rich
stated he was "positive" that at the moment he noticed in his
rear-view mirror that the trailer was loose, there was no
automobile in the lane to his left and no car on or near the
median strip.
When Rich reached the stopped trailer, the tractor's fifth
wheel mechanism was still locked. The "stout metal bar" was
still in proper locking position and was unbroken. The employee
testified he did not know "how the tractor and the trailer got
loose from each other with the [locking pin] still being locked."
Later, another tractor was used to pull the trailer to
defendant's place of business because the locking mechanism of
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the tractor's fifth wheel would not unlock. After the Friday
incident, the employee embarked on another trip the following
Monday using the same tractor and trailer.
On appeal, relying mainly on Virginia Transit Co. v. Durham,
190 Va. 979, 59 S.E.2d 58 (1950), and cases from other
jurisdictions, the plaintiff contends the evidence she adduced
was sufficient to invoke the doctrine of res ipsa loquitur and to
require the trial court to submit the case to the jury. We do
not agree.
Almost 60 years ago, this Court, discussing res ipsa
loquitur, said: "In Virginia the doctrine, if not entirely
abolished, has been limited and restricted to a very material
extent." City of Richmond v. Hood Rubber Prods. Co., 168 Va. 11,
17, 190 S.E. 95, 98 (1937).
The restricted nature of the doctrine is implicit in a
statement of its elements. For the doctrine to apply, the
instrumentality causing the damage must be in the exclusive
possession of or under the exclusive management of the defendant,
the accident must be of such nature and character as does not
ordinarily occur if due care is used, and the evidence regarding
the cause of the incident is accessible to the defendant and
inaccessible to the injured party. Stein v. Powell, 203 Va. 423,
426, 124 S.E.2d 889, 891 (1962).
In other words, the mere fact that an accident occurred does
not warrant application of the doctrine. It may be utilized only
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when the circumstances of the incident, without further proof,
are such that, in the ordinary course of events, the incident
could not have happened except on the theory of negligence. Beer
Distrib., Inc. v. Winfree, 190 Va. 521, 525, 57 S.E.2d 902, 904
(1950). In such case, the doctrine raises a presumption or
permits an inference of negligence. It is not to be applied,
however, when evidence is available. Cooper v. Horn, 248 Va.
417, 421, 448 S.E.2d 403, 405 (1994).
Moreover, the doctrine never applies in the case of an
unexplained accident that may have been attributable to one of
two causes, for one of which the defendant is not responsible.
Seven-Up Bottling Co. v. Gretes, 182 Va. 138, 143, 27 S.E.2d 925,
927 (1943). Accord Logan v. Montgomery Ward & Co., 216 Va. 425,
429, 219 S.E.2d 685, 688 (1975).
In the present case, the plaintiff has failed to prove that
an incident occurred which normally would not have occurred if
defendant had used reasonable care. The employee's testimony
about the maintenance of defendant's tractor-trailer unit on the
day in question prior to the incident was clear, reasonable, and
uncontradicted. Indeed, it showed defendant to be completely
free of fault in the manner the rig was connected, locked, and
operated. The plaintiff did not seek to eliminate alternative
causes of the separation, such as, latent defects in the
equipment. Also, she offered no grounds for deciding that simply
because the unit separated, it therefore must have been due to
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defendant's negligence; she proved only that an accident happened
causing her injury. And, that is insufficient.
The case of Virginia Transit Co. v. Durham, supra, heavily
relied upon by the plaintiff, is inapposite. There, a
defendant's bus collided with an automobile at a city street
intersection and then travelled upon an adjacent sidewalk
injuring a pedestrian walking there.
While this Court's opinion in Durham fails to articulate the
precise questions presented, an examination of the record and
briefs in the case, filed among the Court's records, reveals that
the parties debated whether the plaintiff proved the defendant
was negligent, and whether the trial court erred in giving a res
ipsa loquitur instruction. Record at 4, Virginia Transit Company
v. Durham, (No. 3601); Brief on Behalf of Defendant in Error at
2-3, Durham (No. 3601).
As the opinion indicates, the principal controversy on
appeal was whether the defendant bus company had proved, as a
matter of law, that the hose line on the brakes of the bus had
failed through no fault of the defendant. Actually, as shown by
the conclusory statements in the opinion dealing with res ipsa
loquitur, see e.g., 190 Va. at 983, 984, 59 S.E.2d at 60, as well
as the briefs of the parties, application of the doctrine was not
seriously questioned by the defendant; the fight was over the
sufficiency of the defendant's evidence to rebut the presumption
of negligence. Indeed, the Court ruled that the defendant's
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evidence did not "conclusively prove that the failure of the hose
line took place before the collision with the other car." Id. at
987, 59 S.E.2d at 62.
Additionally, the Durham court relied mainly on the
circumstances of the accident by opining that when "a motor
vehicle is operated so that it leaves the designated vehicular
thoroughfare and enters upon a city sidewalk into an area set
aside for the exclusive use of pedestrians and there inflicts
injury, the case falls within the maxim, res ipsa loquitur." Id.
at 984, 59 S.E.2d at 61, citing Trauerman v. Oliver's Admr, 125
Va. 458, 462-64, 99 S.E. 647, 648-49 (1919), a case which did not
discuss res ipsa loquitur. Of course, even if the doctrine were
today held to apply to such state of facts, they do not exist
here.
Consequently, the judgment of the trial court will be
Affirmed.
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