dissenting. I concur with the dissenting opinion of Judge Pittman in this matter. I write separately, however, because I am concerned that the majority, in attempting to exercise what it believes to be fairness, has usurped the discretion of the trial judge and has extended the giving of a res ipsa loquitur instruction to more liberal situations than historically allowed in Arkansas.
Historically, the res ipsa loquitur instruction has been reserved for cases where the instrumentality is within the exclusive control of one party. See Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). The giving of this instruction until now has always been a discretionary call for the trial judge, which we did not reverse in the absence of abuse. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Transit Homes, Inc. v. Bellamy, 282 Ark. 453, 671 S.W.2d 153 (1984); Eisner v. Fields, 67 Ark. App. 238, 998 S.W.2d 421 (1999). A party is entided to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support the giving of the instruction. Coca-Cola Bottling Co., supra. However, we have consistently held that where there are alternate explanations of the ultimate cause of an injury, the trial court does not abuse its discretion in refusing the res ipsa loquitur instruction. See, e.g., Eisner, supra (no abuse of discretion even though expert testified that it was unlikely the infection arose anywhere outside of the doctor’s office); Transit Homes, supra (no abuse of discretion where the defendant did not have sole control of wheel which caused accident where wheel fell off of RV being transported by defendant).
I am concerned that the reasoning employed in the majority opinion will deprive the trial judge of the discretion to make that determination in the future. I respectfully dissent.