torts compiled cases 1-11 nov 26 (1)

8/10/2019 Torts Compiled Cases 1-11 Nov 26 (1)

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001 VESTIL VS. IAC[G.R. NUMBER 74431; November 6, 1!"T#$IC: Liability for damages caused by animals$#NENTE: Cruz, J.

AUT%#R: Carag, J.R.NOTES: if a!!licable"

&ACTS' ()*ro+oo-)/ orer1. T#eness Tan $y, daug#ter of !ri%ate res!ondent s!ouses $y, &as allegedly bitten by t#e dog of 'etitioners (estil i

t#e #ouse of t#e late (icente )iranda, t#e fat#er of 'urita (estil.

2. S#e &as rus#ed to t#e Cebu *eneral +os!ital, ere s#e &as treated for multi!le lacerated &ounds on t#fore#ead and administered an anti-rabies %accine by r. /ntonio Taut0o. S#e &as disc#arged after nine days bu

&as readmitted one &ee1 later due to %omiting of sali%a.3. T#e follo&ing day, T#eness died due to bronc#o-!neumonia.4. Se%en mont#s later, t#e $ys sued for damages, alleging t#at t#e (estils &ere liable to t#em as t#e !ossessors o

/ndoy, t#e dog t#at bit and e%entually 1illed t#eir daug#ter. T#e (estils re0ected t#e c#arge, insisting t#at t#e do

belonged to t#e deceased (icente )iranda, t#at it &as a tame animal, and t#at in any case no one #ad &itnessed

bite T#eness.. C23 #eld in fa%or of t#e (estils, and dismissed t#e com!laint.6. 3/C re%ersed, #a%ing found t#at t#e (estils &ere in !ossession of t#e #ouse and t#e dog and so s#ould b

res!onsible under /rticle 4567 of t#e Ci%il Code for t#e in0uries caused by t#e dog.

ISSUE(S:Whether or not the spouses Vestil are liable for the death of Respondent Spousesdaughter%EL: 8es, 'etitioners are still liable.

RATI#:1. /rticle 4567 reads as follo&s:

a. The possessor of an animal or whoever may make use of the same is responsible for the damage which

may cause, although it may escape or be lost. 'This responsibility shall cease only in case the damage

should come from force majeure from the fault of the person who has suffered damage.

2. T#e !etitioner9s contention t#at t#ey could not be e!ected to eercise remote control of t#e dog is not acce!table3n fact, /rticle 4567 of t#e Ci%il Code #olds t#e !ossessor liable e%en if t#e animal s#ould esca!e or be lost an

so be remo%ed from #is control. /nd it does not matter eit#er t#at, as t#e !etitioners also contend, t#e dog &as tam

and &as merely !ro%o1ed by t#e c#ild into biting #er. T#e la& does not s!ea1 only of %icious animals but co%er

e%en tame ones as long as t#ey cause in0ury. /s for t#e alleged !ro%ocation, t#e !etitioners forget t#at T#eness &a

only t#ree years old at t#e time s#e &as attac1ed and can #ardly be faulted for ate%er s#e mig#t #a%e done to t#

animal.

3. /ccording to )anresa t#e obligation im!osed by /rticle 4567 of t#e Ci%il Code is not based on t#e negligence oon t#e !resumed lac1 of %igilance of t#e !ossessor or user of t#e animal causing t#e damage. 3t is based on natura

e;uity and on t#e !rinci!le of social interest t#at #e o !ossesses animals for #is utility, !leasure or ser%ice mus

ans&er for t#e damage ic# suc# animal may cause4. Side 3ssues:

a. 7 and until 5=>?, et#e incident in ;uestion occurred. 3t is also note&ort#y t#at t#e !etitioners offered to assist t#e $ys &it

t#eir #os!italization e!enses alt#oug# 'urita said s#e 1ne& t#em only casually

d. @ased also on t#e medical eamination regarding t#e c#ildAs cause of deat#, it &as clearly mentioned t#

#er cause of deat# &as due to a com!lication of rabies.

e.


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ISSENTINGC#NCURRING #$INI#N(S:

002 +-)o+- v. /+//+G.R. No. L847033; A9r 2, 141T#$IC: 2alling Ob0ects$#NENTE: AVANCE:A, J.

AUT%#R: Sara#NOTES: T#e case is in S!anis#. @ut t#an1s to googl

translateB

&ACTS'5. @rot#ers Loreto ingcong and Jose ingcong are coarrentadarios of senior #ouse Emilia Saenz located in Call

Jose )a. @asa City 3loilo, ere t#ey establis#ed t#e Central +otel, being t#e o&ner first and last #is manager.

4. efendant 2rancisco Ec#e%arria occu!y t#e fourt# No. 5 of t#at #otel.7. T#e Danaans engaged in t#e trade name /merican @azaarF" acu!aban turn t#e basement of t#e #otel ere t#e

#ad establis#ed t#eir /merican @azar dedicated to buying and selling items and mencancias.

G. 3n t#e e%ening of Se!tember 5=, 5=77, Ec#e%arria, to retire to bed, lea%e t#e ta! o!en carelessly o%erloo1e

ordinary &it#out drainage basin. /s t#e !i!es of t#e #otel at t#e time t#ey &ere in re!air, en at midnig#t t#

dre& &ater !i!es on t#e floor s!read, tras!asandolo and &etting articles and mencancias on lo& setting /merica

@azaar, causing a lost.

?. T#e Danaans filed a case against Loreto ingcong, ingcong and 2rancisco Jose Ec#e%arria for damages caused.

H. C23: dismissed t#e case as to Loreto ingcong to #a%e died, and condemn 2rancisco Ec#e%arria, absol%ing Josingcong. T#e !laintiffs a!!ealed t#is decision absol%es as Jose ingcong.

>. C/: Re%ersed. Jose ingcong res!onsible and condemn #im to !ay t#e !laintiffs t#e amount of damages caused t

t#em as assessed by t#e court.

ISSUE(S:5.


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of t#e San Juan council to !ass ordinances !ro%iding for t#e summary abatement of !ublic nuisances, and t#at t#

ordinance in ;uestion may not be faulted for being e !ost facto in a!!lication since it does not see1 to !unis# an action

done ic# &as innocent before t#e !assage of t#e same. Rat#er, it !unis#es t#e !resent and continuing act of unla&fu

occu!ancy of !ublic !ro!erty or !ro!erties intended for !ublic use. /t any rate, t#e decisi%e !oint is t#at inde!endently o

t#e said ordinance, 9e==o+er


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004. JAIME PEREZ, both in his personal and official capacityas Chief of the Marikina e!olition "ffice #. $po%sesMadrona&.R. 'o. ()44*), March +(, +0(+P"'E'E: Villarama, J.

A-"R: Rikki

/AC$ 1chronolo2ical order3

Respondent-spouses Fortunito Madrona and Yolanda B. Pante are registered owners of a residential property loated in!reen"eig"ts #u$d, P"ase %%, Marikina &irt and o'erede $y (&( )o. *++ of t"e Registry of /eeds of Marikina.

%n *0, respondents $uilt t"eir "ouse t"ereon and enlosed it wit" a onrete fene and steel gate.

%n *, respondents reei'ed a letter dated May 1, * from petitioner Jaime #. Pere2, &"ief of t"e Marikina /emolitio3ffie stating t"at t"e struture t"at t"ey $uilt enroa"ed on t"e sidewalk and t"at is in 'iolation of P/ *4+ of t"e )ationaBuilding &ode and R5 *6 on %llegally 3upied7&onstruted %mpro'ements wit"in t"e road rig"t-of-way.

("e respondents are gi'en 6 days to remo'e t"e said struture. 5s a response, respondent Madrona sent petitioner a lettestating t"at t"e May 1, * letter 8*9 ontained an ausation li$elous in nature as it is ondemning "im and "is propertywit"out due proess 819 "as no $asis and aut"ority sine t"ere is no ourt ordering "im to demolis" t"e said struture 89ited legal $asis and aut"ority w"i" do not e;pliitly gi'e t"e petitioner t"e aut"ority to demolis" and 8s laim t"at t"e fene "as enroa"ed on t"e sidewalkas to =ustify its summary demolition. &5 affirmed t"e ruling of t"e R(&.

%##A: @3) t"e respondents> struture is a nuisane per se t"at presents an immediate danger to t"e ommunity>swelfare and an $e remo'ed wit"out t"e need of =udiial inter'ention sine t"e learing of t"e sidewalks is an infrastuturepro=et of t"e Marikina C! and annot $e restrained $y t"e ourts as pro'ided in P/ *0*0.

?AC/:)3.)uisane per se 's. nuisane per aidens only nuisane per se may $e summarily a$ated wit"out =udiial inter'ention. %fpetitioner indeed found respondentsD fene to "a'e enroa"ed on t"e sidewalk, "is remedy is not to demolis" t"e samesummarily after respondents failed to "eed "is reEuest to remo'e it. %nstead, "e s"ould go to ourt and pro'e respondentssupposed 'iolations in t"e onstrution of t"e onrete fene. %ndeed, unless a t"ing is a nuisaneper se, it may not $ea$ated summarily wit"out =udiial inter'ention.

RespondentsD fene is not a nuisane per se. By its nature, it is not in=urious to t"e "ealt" or omfort of t"e ommunity. %twas $uilt primarily to seure t"e property of respondents and pre'ent intruders from entering it. 5nd as orretly pointedout $y respondents, t"e sidewalk still e;ists. %f petitioner $elie'es t"at respondentsD fene indeed enroa"es on t"esidewalk, it may $e so pro'en in a "earing onduted for t"at purpose. )ot $eing a nuisane per se, $ut at most anuisane per aidens, its summary a$atement wit"out =udiial inter'ention is unwarranted.


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@it" regard to respondentsD laim for moral damages, t"is &ourt rules t"at t"ey are entitled t"ereto in t"e amount ofP*4,444.44 pursuant to 5rtile 11*6 of t"e &i'il &ode. 5s testified to $y respondents, t"ey suffered an;iety and sleeplessnig"ts sine t"ey were worried w"at would "appen to t"eir "ildren w"o were left $y t"emsel'es in t"eir Marikina residenew"ile t"ey were in 3rmo &ity if petitioner would make real "is t"reat of demolition on t"eir fene.

@e likewise "old t"at respondents are entitled to e;emplary damages in t"e amount of P,444.44 to ser'e as an e;ampleto ot"er pu$li offiials t"at t"ey s"ould $e more irumspet in t"e performane of t"eir duties.@?ARAF3RA, t"e Mar" *, 1440 /eision and #eptem$er *4, 1440 Resolution of t"e &ourt of 5ppeals in &5-!.R. &V.

)o. 0+6 are 5FF%RMA/ wit" M3/%F%&5(%3). Petitioner Jaime #. Pere2, &"ief of t"e /emolition 3ffie of Marikina &ity

is 3R/ARA/ to pay respondent #pouses Fortunito C. Madrona and Yolanda B. Pante moral damages in t"e amount ofP*4,444.44 and e;emplary damages in t"e amount of P,444.44.


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SALAO v. SANTOSG.R. No. L-45519 April 26, 1939

TOPIC: Nuis!"# p#r ""i$#!s1. Runa Salao and Lucio Lucas, instituted an action to restrain the defendant, T#o%lo C

S!&os, s 'u!i"ipl pr#si$#!& o( )l*o!, from enforcing compliance with his letterof October , 1!"#, wherein said plainti$s were directed to obser%e the re&uirements o(or$i!!"# No. 23, s#ri#s o( 1929, of said municipalit', on the matter of the operationof their smo(ed sh factor' )umbu'an*.

. +he e%idence discloses that for man' 'ears prior to the enactment of this ordinanceplainti$s had alread' established a smo(ed sh factor' and had continuall' operated thesame since then.

". Lucio Lucas, one of the plainti$s herein, was criminall' prosecuted in the ustice of thepeace court of -alabon for noncompliance with the re&uirements of the ordinanceaforementioned, but was ac&uitted to the charge.

/. 0ligio o2on, inter%enor, whose house is situated near the smo(ed sh factor' of theappellants, denounced said factor' as a nuisance, b' lodging a complaint in the centralo3ce of the 4ureau of 5ealth see(ing relief against its continuance.

#. 6n in%estigation was then conducted b' the health authorities, and as a result thereof itwas found that appellants7 smo(ed sh factor' was being operated not in accordance withthe re&uirements of said ordinance.

8. 4ureau of 5ealth and the district health o3ce too( steps to enforce the ordinance andre&uesting plainti$s compliance therewith.

9. :ompliance was refused on the ground that said plainti$ was not within the pur%iew of theordinance in accordance with the decision of the ustice of the peace court abo%e stated.

;. +he municipal president re&uired the plainti$s to compl' with the ordinance of 1!! within"< da's on threat of ha%ing his license re%o(ed.

!. On October 16rt. ")"*. +hat this ordinance s+ll *# ##"&iv# o!lwith regard to those that

will be established after the appro%al hereof, and s+ll !o& *# ppli"*l# tothose lr#$op#r&i!/ & &+# &i'# o( &+# pprovl o( &+is or$i!!"#.

6R+?:L0 ??. +he e$ecti%it' of this ordinance shall retroact to the date of the

appro%al of ordinance @o. ", series of 1!!.

1fabrica o negocio &ue se ha de le%antar> and not to factories alread'established.

. +hat such was the i!!&io! o( &+# or$i!!"# o( 1929 is "o!%r'#$ * or$i!!"#No. 1 o( 1935, which eBpressl' pro%ides that the amended ordinance >shall not be


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applicable to those alread' operating at the time of the appro%al> of the same.". +his amendator' ordinance is %alid, despite the allegation to the e$ect that the municipa

president intended its enactment for the protection of appellants and to frustrate the orderof the health authorities. Whate%er might ha%e been the personal moti%es of the municipapresident, no improper moti%e can be attributed to the municipal council in its enactmentand, therefore, the same stands as the eBpression of the true intention of the bod'.

/. @uisances are of two (inds= nuisance per se and nuisance per accidens.

Nuis!"# p#r s#= recogni2ed as a nuisance under an' and all circumstances, because it

constitutes a direct menace to public health or safet', and, for that reason, ma' be abatedsummaril' under the undened law of necessit'.

Nuis!"# p#r ""i$#!s: +hat which depends upon certain conditions andcircumstances, and its eBistence being a &uestion of fact, it cannot be abated without duehearing thereon in a tribunal authori2ed to decide whether such a thing does in lawconstitute a nuisance. )?loilo ?ce and :old Storage :o. %s. -unicipal :ouncil of ?loilo, /Ahil., /91C -onte%erde %s. eneroso, # Ahil., 1", 19.*

6ppellants7 smo(ed sh factor' is not a nuisance per se. ?t is a legitimate industr'. ?f it be, in fact,a nuisance due to the manner of its operation, then it would be merel' a nuisance per accidens.:onse&uentl', the order of the municipal president and those of the health authorities issued

with a %iew to the summar' abatement of what the' ha%e concluded, b' their own ndings, as anuisance, are null and %oid there ha%ing been no hearing in court to the e$ect.

Dudgment is re%ersed, with costs against appellees.


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006 Be+-o+ v $rov+)e o> $/+-/ years.7. uring t#e years 5=4G-5=4?, u!on t#e ad0acent lot, t#e defendant constructed a reinforced concrete stand

!i!e 46 meters #ig# and = meters in diameter. : t#e !laintiff !rotested to t#e go%ernor of t#e !ro%ince for t#e manner in ic# t#e !lant &abeing o!erated and as1ed t#at #e be indemnified for t#e %alue of #is #ouse and lot so t#at #e mig#t mo%

#is family and #is effects to anot#er residence.?. Trial court: after ma1ing an ocular ins!ection of t#e !lant and #earing t#e testimony of t#e &itnesses, i

ruled t#at t#e o!eration of t#e !um!s and t#e tan1 creates some annoyance and discomfort to t#e !laintiff

t#ese are but ordinary and incidental to t#e reasonable conduct of t#e defendant9s &ater system. T#e courfurt#er #eld t#at inasmuc# as t#e !laintiff did not !rotest till after t#e !lan &as constructed, #is action i

barred for lac#es.

ISSUE(S:


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7 PRO 8. LASCO, pli!&i-pp#ll!&,vs.)ANILA LCTRIC CO., ILLIA) SNR,i&s Pr#si$#!&; 8ON COTTON !$R)NGILO


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conduct of man' necessar' occupations. ?ts presence is a nuisance in the popular sense in whichthat word is used, but in the absence of statute noise becomes actionable onl' when it passes thelimits of reasonable adustment to the conditions of the localit' and of the needs of the ma(er tothe needs of the listener. What those limits are cannot be Bed b' an' denite measure o&uantit' or &ualit'. +he' depend upon the circumstances of the particular case. +he' ma' bea$ected, but are not controlled, b' 2oning ordinances. +he delimitation of designated areas tuse for manufacturing, industr' or general business is not a license to emit e%er' noise protabl'attending the conduct of an' one of them. +he test is whether rights of propert' of health or ocomfort are so inuriousl' a$ected b' the noise in &uestion that the su$erer is subected to a los

which goes be'ond the reasonable limit imposed upon him b' the condition of li%ing, or of holdingpropert', in a particular localit' in fact de%oted to uses which in%ol%e the emission of noisealthough ordinar' care is ta(en to conne it within reasonable boundsC or in the %icinit' opropert' of another owner who though creating a noise is acting with reasonable regard for therights of those a$ected b' it.CAS LAE OCTRIN=

ISSNTINGECONCRRING OPINIONSD=


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0! VIRGILI# M. EL R#SARI# /+ C#RA#N$AREES8EL R#SARI#,!etitioners, %s. C#URT #&A$$EALS /+ METAL RMINGC#R$#RATI#N, res!ondents.*.R. No. 55674? January 4=, 5==>

'ONENTE: N/R(/S/, C.J.:

AUT%#R: Loila @. La C#icaNOTEMS:

&ACTS:. No%ember 45, 5== - S!ouses el Rosarios resided at No. 5> Tabuena Street, Corint#ian *ardens, uezon City.

T#ey filed a com!laint, c#arged )2C &it# a %iolation of Section 7 of /ct No. 7>G, !n !ct to "enali#e$raudulent !dvertising, %islabeling or %isbranding of !ny "roduct, &tocks, onds, etc.

(. 3n selling to t#e !ublic roofing materials 1no&n as @ana&e s#ingles, )2C made re!resentations on t#e

durability of t#e !roduct and t#e sturdiness of its installation t#roug# massi%e ad%ertisements in !rint media and

tele%ision and broc#ures :

). T#ese re!resentations !articularly t#ose c#aracterizing t#e s#ingles as STR$CT$R/LL8 S/2E /N

STRON* and t#at t#e @/N/>)e o> =*e $re


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- Satisfactory e%idence of t#e !syc#ological and mental trauma actually suffered by t#e el Rosarios, t#e grant to

t#em of moral damages is &arranted. O%er a !eriod of about a mont#. t#ey e!erienced feelings of s#oc1,

#el!lessness, fear, embarrassment and anger.

3. Eem!lary damages are !ro!erly eigible of )2C, /rticle 444= of t#e Ci%il Code !ro%ides t#at suc# damagesmay be im!osed by &ay of eam!le or correction for t#e !ublic good; Eem9/r /m/-e< me/+*e, *)*/re m9o


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9 ISIRO v NISSAN )OTORS PILS.,INC.G.R. No. 1365 C)


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5 Coca Cola @ottlers '#ils. 3nc % Ca

*.R. No. 554=? October 56, 5==7

TO'3C:

'ONENTE: a%ide, J.

/$T+OR:

NOTEMS:

2/CTS:

1. 'ri%ate res!ondent &as t#e !ro!rietress of Dindergarten


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3t must be made clear t#at our affirmance of t#e decision of t#e !ublic res!ondent s#ould by no means be understood as

suggesting t#at t#e !ri%ate res!ondent9s claims for moral damages #a%e sufficient factual and legal basis.


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11 L6IES 0S:OL6, Respondent, %. :O:6:OL6 4O++L?@ :O-A6@E OM MR0S@O )a:orporation*, 6ppellant.TOPIC= Rep ?psa Lo&uitur$#NENTE: *ibson, J.

ATOR= 4ea -ationgNOTS:

Res ipsa lo&uitur does not appl' unless )1defendant had eBclusi%e control of the thincausing the inur' and )* the accident is osuch a nature that it ordinaril' would not occuin the absence of negligence b' the defendant.

&ACTS'

Alainti$, a waitress in a restaurant, was inured when a bottle of :oca :ola bro(e in her hand. Shealleged that defendant compan', which had bottled and deli%ered the alleged defecti%e bottle toher emplo'er, was negligent in selling >bottles containing said be%erage which on account oeBcessi%e pressure of gas or b' reason of some defect in the bottle was dangerous ... and li(el' toeBplode.>

Iefendant7s dri%er deli%ered se%eral cases of :oca :ola to the restaurant, placing them on theNoor, one on top of the other, under and behind the counter, where the' remained at least thirt'siB hours. ?mmediatel' before the accident, plainti$ pic(ed up the top case and set it upon a near

b' ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded tota(e the bottles from the case with her right hand, one at a time, and put them into therefrigerator. Alainti$ testied that after she had placed three bottles in the refrigerator and hadmo%ed the fourth bottle about eighteen inches from the case >it eBploded in m' hand.>

+he bottle bro(e into two agged pieces and inNicted a deep %einch cut, se%ering blood %esselsner%es and muscles of the thumb and palm of the hand. Alainti$ further testied that when thebottle eBploded, >?t made a sound similar to an electric light bulb that would ha%e dropped. ?made a loud pop.>

Alainti$7s emplo'er testied, >? was about twent' feet from where it actuall' happened and heard the eBplosion.> 6 fellow emplo'ee, on the opposite side of the counter, testied tha

plainti$ >had the bottle, ? should udge, waist high, and ? (now that it didn7t bang either the caseor the door or another bottle ... when it popped. ?t sounded ust li(e a fruit ar would blow up. ...>

+he bro(en bottle was not produced at the trial, the pieces ha%ing been thrown awa' b' aemplo'ee of the restaurant shortl' after the accident. Alainti$, howe%er, described the bro(enpieces, and a diagram of the bottle was made showing the location of the >fracture line> wherethe bottle bro(e in two.

ISSUE(S:

W@ the defendant compan' is liable for the inuries sustained b' the plainti$.W@ the doctrine of rep ipsa lo&uitor applies.

%EL: 8es, t#e defendant com!any is liable 8es, t#e doctrine a!!lies.

RATI#:

Pnder the more logical %iew, the doctrine ma' be applied upon the theor' that defendant hadcontrol at the time of the alleged negligent act, although not at the time of the accident, pro%ideplainti$ rst pro%es that the condition of the instrumentalit' had not been changed after it left thedefendant7s possession.


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+he e%idence appears su3cient to support a reasonable inference that the bottle here in%ol%edwas not damaged b' an' eBtraneous force after deli%er' to the restaurant b' defendant. follows, therefore, that the bottle was in some manner defecti%e at the time defendanrelin&uished control, because sound and properl' prepared bottles of carbonated li&uids do noordinaril' eBplode when carefull' handled.

6 chemical engineer for the Owens?llinois lass :ompan' and its Aacic :oast subsidiar', ma(eof :oca :ola bottles, eBplained how glass is manufactured and the methods used in testing andinspecting bottles. +he sample bottles are also subected to the standard thermal shoc( test. +he

witness stated that these tests are >prett' near> infallible.

?t thus appears that there is a%ailable to the industr' a commonl'used method of testing bottlesfor defects not apparent to the e'e, which is almost infallible. Since :oca :ola bottles arsubected to these tests b' the manufacturer, it is not li(el' that the' contain defects whendeli%ered to the bottler which are not disco%erable b' %isual inspection. 4oth new and usedbottles are lled and distributed b' defendant.

Al&+ou/+ i& is !o& "l#r i! &+is "s# 0+#&+#r &+# #Fplosio! 0s "us#$ * ! #F"#ssiv#"+r/# or $#(#"& i! &+# /lss, &+#r# is su"i#!& s+o0i!/ &+& !#i&+#r "us# 0oul$or$i!ril +v# *##! pr#s#!& i( $u# "r# +$ *##! us#$. Bur&+#r, $#(#!$!& +$#F"lusiv# "o!&rol ov#r *o&+ &+# "+r/i!/ !$ i!sp#"&io! o( &+# *o&&l#s. A""or$i!/l, l

&+# r#Huir#'#!&s !#"#ssr &o #!&i&l# pli!&i &o r#l o! &+# $o"&ri!# o( r#s ipsloHui&ur &o suppl ! i!(#r#!"# o( !#/li/#!"# r# pr#s#!&.

?t is true that defendant presented e%idence tending to show that it eBercised considerableprecaution b' carefull' regulating and chec(ing the pressure in the bottles and b' ma(ing %isuainspections for defects in the glass at se%eral stages during the bottling process. ?t is well settledhowe%er, that when a defendant produces e%idence to rebut the inference of negligence whicharises upon application of the doctrine of res ipsa lo&uitur, it is ordinaril' a &uestion of fact for the

ur' to determine whether the inference has been dispelled.CASE LA5 #CTRINE:

Res ipsa lo&uitur does not appl' unless )1* defendant had eBclusi%e control of the thing causing

the inur' and )* the accident is of such a nature that it ordinaril' would not occur in the absenceof negligence b' the defendant.ISSENTINGC#NCURRING #$INI#N(S: NM/

torts compiled cases 1-11 nov 26 (1)

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