dissenting. I dissent because I do not agree that appellant was entitled to an instruction on res ipsa loquitur. Under the doctrine of res ipsa loquitur, it is vital to show that the instrumentality causing the injury was under the exclusive control of the defendant. Ford Motor Co. v. Gornatti, 253 Ark. 237, 486 S.W.2d 10 (1972). Therefore, the doctrine will not apply if the accident might have been in part due to the act of a third person over whom the defendant had no control. 57B Am. JUR. 2d, Negligence § 1876 (1989). Other responsible causes, including the conduct of third persons, must be sufficiently eliminated by the evidence. Biggs v. Logicon, Inc., 663 F.2d 52 (8th Cir. 1981); see Robert A. Leñar, Res Ipsa Loquitur in Arkansas, 8 Ark. L. Bulletin 43, 55 (1940). The doctrine is never applicable if the evidence shows that the instrumentality had been tampered or meddled with by someone other than the defendant, such as a third person. 57B Am. Jur. 2d Negligence § 1878 (1989).
In the present case the defendant testified that the instrumentality, i.e., the Plexiglass sheet, did not belong to him and that he did not know where it came from or how it came to be on the roof of his camper. He further testified that he was unable to see the roof of his camper from ground level and was unaware that the Plexiglass was there when he left to go to work. Finally, he testified that he lived on a busy street, next to a gas station and a lumber yard; that there was heavy pedestrian traffic in the area; and that objects frequently fell off passing trucks. Given this testimony, and the evidence that the defendant’s truck was parked in his yard unattended for approximately two hours prior to the accident, there was substantial evidence that the Plexiglass was not under defendant’s exclusive control at the time of the negligent act. Consequently, the trial judge did not err in refusing to give the res ipsa loquitur instruction. Eisner v. Fields, 67 Ark. App. 238, 998 S.W.2d 421 (1999) (trial judge did not abuse his discretion in refusing the instruction because there was substantial evidence that the injury was not caused by the thing or instrumentality under the control of the appellant).
I respectfully dissent.
Rogers, J., joins in this dissent.