stating the doctrine “will not be applied unless the facts and circumstances indicate that the negligence of the defendant ... is the most plausible explanation of the accident.”
How later courts described this case
- stating the doctrine “will not be applied unless the facts and circumstances indicate that the negligence of the defendant ... is the most plausible explanation of the accident.”
- res ipsa loquitur held inapplicable where whole cartons fell from display
- italics supplied in Bourdeaux
Written by the judges who cited it.
Distinguished
Distinguished by Sims v. Gibson's of Denham Springs, Inc., 1967 La. App. LEXIS 4784 (1967)
Pilie v. National Food Stores of Louisiana, supra. The rule is inapplicable, however, when the inference that the accident resulted from a cause other than defendant’s negligence can be drawn as reasonably as the inference that the mishap did occur because of defendant’s fault.
The opinion
FOURNET, Chief Justice
(dissenting).
The author of the majority opinion, while lauding the decision of this court in Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544 , 97 So.2d 389 , as the landmark case in this state on the subject of res ipsa loquitur, has, in my humble opinion, failed to give it the proper application to the facts in the case at bar, in that he completely overlooks the fact that one can be guilty of negligence by acts of omission as well as by acts of commission.
In reaching the conclusion the doctrine, or maxim, of res ipsa loquitur does not apply here, the majority view has completely overlooked the fact that it is the duty of the operator of self-service stores, who, for purposes of economy, have eliminated the expense attendant upon the use of behind-the-counter clerical help, to take reasonable measures to see that the customers thus invited to serve themselves will not be injured as the result of the new innovations adopted for the operation of such stores, and particularly from objects that, by the very nature of this new method of merchandizing, cannot help but fall with frequency, whether because improperly stacked by those selling the product and initially placing it on the shelves, improperly and carelessly placed on the shelves by the store’s own employees when the original stock must be replenished, or by other customers when discarding articles picked up by them after it has been decided these are not wanted.
It is conceded in the instant case that Mrs. Pilie was injured when two cartons of coca-cola that had been placed on defendant’s self-service shelves and never touched by her fell when she was some 18-inches away from them, with the result that at least one — and possibly two — of the bottles in the cartons exploded and the glass was thrown toward her feet, causing-severe injury to at least one foot. Clearly this accident was not caused by reason of the fault or negligence of Mrs. Pilie. Indeed, this is conceded. Consequently, it could have been caused only through the fault or negligence of someone else. And inasmuch as the defendant has not seen, fit to come forward and offer some reasonable explanation as to just how this accident could have occurred that would have-the effect of absolving it from negligence,, or at least make a showing that every reasonable precaution had been taken by it to insure that customers using its self-service facilities would be able to shop there in safety, it has failed to absolve itself from liability.
It is my opinion, therefore, that Mrs. Pilie is clearly entitled to recover in this. *292 case under the decision in the Larkin case,, where we specifically held that “All that is meant by res ipsa loquitur is ‘that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident w'as due to some omission of the defendant’s duty.’ ” Here the defendant has chosen to give no explanation whatsoever, thus bringing itself squarely within this established rule of law. (The emphasis has been supplied by me.)