Foster v. City of Keyser

In Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997), the Court set forth the following standard in Syllabus Point 4 for the application of the rule of res ipsa loquitur: Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when: (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff. In applying this rule, the Court stated that: It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. (Foster, 202 W.Va. at 21, 501 S.E.2d at 185.)