When Is the Three-Part Test of the Res Ipsa Loquitur Theory Applicable ?
In Bonventre v. Max, 229 AD2d 557; Zurlo v. Metropolitan Tr. Auth., 184 Misc 2d 988 [App Term, 2d Dept] the Appellate Division considered the paramount issue was the second element of the three-part test of the res ipsa loquitur theory.
The Appellate Division unanimously held that "the plaintiff need not have shown that the defendants were the only ones in control ... but she must have shown that the defendants' control was of 'sufficient exclusivity to fairly rule out the chance that any purported defect' was caused by some other agency" (Bonventre v. Max, supra, at 558).
Under these circumstances, the security guard and the surveillance camera near the escalator monitored the use of the escalator by the public.
As the Second Department observed in Bonventre, while the public may use something, that does not explain the misfortune here.
Moreover, these circumstances are sufficient to raise a genuine issue of material fact together with the infant plaintiff's statements regarding the nature and character of what caused her injury coupled with the supervisory roles and reactions of the mother and grandmother and the statements of the store security guard.
Further, the Appellate Term, in Zurlo v. Metropolitan Tr. Auth, held the defendants' negligence was probably the cause of the accident to the plaintiff and probably not the negligence of another, so the res ipsa loquitur theory was appropriate.