County Small Claims Court: NEGLIGENCE
- Res ipsa loquitur was not an appropriate
theory in this case since its application would essentially eliminate the
element of causation from the plaintiff’s burden of proof – Appellee could
not prove that the instrumentality that caused the injury was in appellant’s
exclusive control because the evidence did not establish the cause of the
dog’s broken leg - Since the evidence did not show the cause of the injury,
appellee did not carry her burden to prove the necessary elements of the negligence
claim. Final Judgment reversed. Anthony v. Phillips-Perino, No. 02-2330-CI-88A
OF THE STATE OF
APPELLATE DIVISION UCN 522002**002330XXCI*P
DR. DAVID LEE ANTHONY,
Small Claims 01-7047-SC
Appeal from Final Judgment
Court, Small Claims Division,
The Honorable Karl B. Grube
Dr. David Anthony (“Anthony”) appeals a bench trial awarding damages to Denise Phillips-Perino (“Perino”) stemming from an injury that her dog sustained while receiving treatment for an unrelated injury at Anthony’s veterinary office. The trial judge held that Perino was entitled to damages under the doctrine of res ipsa loquitur.
Perino noted that her 8 ½-year old lab/chow mix was limping slightly on her left rear leg. Concerned that her dog was suffering from slight hip displaysia or arthritis, Perino took her dog to Anthony, her regular veterinarian, for x-rays. Anthony, through his two veterinary technicians, placed the dog under anesthesia and took x-rays of the left rear leg for diagnostic purposes and of the right rear leg for comparison purposes. The x-rays showed no abnormality in the left leg, but the x-rays did show some abnormalities in the upper right leg. 
The veterinary assistants testified that during the x-rays and while the dog was unconscious from the anesthesia, one of them was always monitoring the dog’s progress. When the dog came out from under the anesthesia and began to walk around, one of the veterinary assistants noted that the dog now had a severe limp in her right rear leg. The veterinary assistants testified that the dog had neither fallen nor been dropped during the x-rays or afterward during recovery. Perino, who was not allowed to remain in the room with the dog during x-rays and recovery, testified that at one point the door was opened about a foot, and that while she could see her dog, she could not tell if the dog was attended or unattended.
When Perino saw her dog limping, she became extremely agitated. She took the x-rays and her dog and left Anthony’s office immediately. She drove her dog to an emergency veterinarian clinic, but the clinic refused to treat the dog without a referral from her regular veterinarian. Perino then drove to Dr. Howell’s office to have her dog examined.
Dr. Howell took a second set of x-rays that showed the right rear leg was broken. He referred Perino back to the emergency veterinarian’s clinic. The next day, Perino took her dog to see Dr. Kimberly Cox at the emergency clinic. Dr. Cox reviewed Anthony’s x-rays and confirmed that the right rear leg contained some lysis; however, she also noted some lysis in the left rear leg. Dr. Cox then reviewed Dr. Howell’s x-rays and confirmed that the right rear leg was broken. She then took more x-rays of the dog’s rear legs and x-rays of the dog’s chest because she suspected that bone cancer was present and would explain the lysis.
Dr. Cox diagnosed the dog’s broken leg as a “pathologic fracture,” “meaning it occurred secondary to an underlying problem in the bone causing it to be weak.”  Because of the dog’s breed and advanced age, Dr. Cox suspected that the dog had a form of bone cancer. After Dr. Cox discussed treatment options with Perino, Perino decided to have the bone fracture set and have a bone biopsy taken. Dr. Cox performed the surgery that day, setting the dog’s leg with a bone plate and twelve screws.
The biopsy confirmed that the dog did have bone cancer. Dr. Cox testified concerning the dog’s prognosis. Perino later decided to have her dog euthanized because the dog’s leg was swollen and because she wanted to “get her out of her misery.” 
Perino filed suit against Anthony in county court claiming negligence in the treatment of her dog. Anthony counterclaimed for the amount incurred in taking the x-rays.
Anthony argues that the county court improperly based its ruling on the theory of res ipsa loquitur. Specifically, he argues that the county court’s decision was clearly erroneous because the evidence did not prove that the dog’s broken leg occurred while in Anthony’s exclusive control and because the evidence proved that the injury could have occurred without negligence by Anthony. He also argues that this Court should conduct a de novo review of the facts and find that Perino failed to prove the elements of negligence. Anthony claims that under an ordinary negligence theory, Perino failed to prove that Anthony breached his duty of care. Anthony further claims that under the theory of res ipsa loquitur, Perino failed to show that the accident occurred as the result of negligence or under Anthony’s exclusive control and that the county court improperly denied his motion for a directed verdict.
Perino argues that res ipsa loquitur is entirely appropriate in this case and that the county court properly denied Anthony’s motion for a directed verdict. Anthony’s reply brief refutes Perino’s arguments and reiterates his own.
I. Res ipsa loquitur does not apply to this case.
Res ipsa loquitur is not an appropriate theory on these facts. Application of res ipsa loquitur to the facts of this case essentially would eliminate the element of causation from the plaintiff’s burden of proof. The county court extended the doctrine of res ipsa loquitur from its intended purpose as a rebuttable inference of negligence into an exception to the burden of proof.
ipsa loquitur is a limited doctrine that allows a plaintiff
to prove negligence through circumstantial evidence rather than direct evidence.
See Wolpert v.
In this case, Perino cannot prove that the instrumentality that caused the injury was in Anthony’s exclusive control because the evidence did not establish the cause of the dog’s broken leg.
The circumstantial evidence in this case does indicate that the break occurred while the dog was under Anthony’s exclusive control. The evidence proved the following: (1) that the dog did not limp on her right rear leg when she entered the veterinarian’s office; (2) that the right rear leg was not broken at the time the x-rays were taken; and (3) that the dog was limping on her right rear leg shortly after coming out from under the anesthesia. This evidence, together with the evidence of the severity of the break and the dog’s inability to use the leg, allowed the court to reasonably conclude that the break occurred after the x-rays but before the dog left the veterinarian’s office. Proof that the break occurred while the dog was under Anthony’s exclusive control, however, does not allow the court to infer negligence under res ipsa loquitur because the doctrine requires the plaintiff to show the instrumentality causing the injury was in the defendant’s control.
Here, Perino cannot discern the cause of the injury. In fact, all of the testimony indicates that nothing unusual occurred in the veterinarian’s office. The plaintiff’s own “expert,” Dr. Cox, testified that she could not pinpoint the cause of the break without speculating. (T. at 59). She did testify, however, that her diagnosis was a pathological fracture. (T. at 49).
fact that the property damaged was in the defendant’s exclusive control cannot,
by itself, satisfy the first element of res ipsa loquitur. As
Goodyear Tire & Rubber
Moreover, since the evidence did not show the cause of the injury, Perino did not carry her burden to prove the necessary elements of the negligence claim. It is therefore
ORDERED AND ADJUDGED that the Final Judgment of the County Court is REVERSED and remanded to the County Court with directions to enter a Final Judgment for Dr. Anthony on this claim.
DONE AND ORDERED
in Chambers, at
JOHN A. SCHAEFER
Copies furnished to:
Bryant Boydstun, Jr, Esq., PO Drawer 76387,
II. Even if res ipsa loquitur properly was considered in this case, the inference of negligence cannot stand under the weight of the evidence.
Even if this Court determined that res ipsa loquitur, in property damage cases, requires only a showing that the property was under the defendant’s exclusive control in order to support an inference of negligence, Anthony put forth sufficient evidence to negate the inference of negligence.
the plaintiff has established a prima facie case for res ipsa loquitur,
the defendant can prevent the court from instructing a jury on the inference
of negligence by putting forth proof that the injury can be attributed to
another cause or that the defendant did not act negligently. See
Hines v. Fox, 89 So.2d 13, 16 (
Even if this Court assumes that res ipsa loquitur was a proper consideration in this case and that Perino made her prima facie case for res ipsa loquitur, Perino cannot meet the preponderance of the evidence standard required for the doctrine to apply. None of the evidence, other than the injury itself, gives any indication that Anthony was negligent. Anthony’s veterinary assistants testified that the dog was in their sight the entire time she was being treated, that she did not fall off the examining table, that she experienced no seizures or twitches associated with the after affects of anesthesia, and that nothing happened that could have caused the break. This evidence is undisputed. Perino did testify that she saw her dog alone in the examining room when the door was ajar, but that she could not see the entire room; therefore, she could not say whether an assistant was behind the door or in another part of the room. Moreover, Perino’s “expert,” Dr. Cox, testified that the primary cause of the break was the osteosarcoma and that given the dog’s diagnosis, it was possible that the dog broke its leg by walking.
Based on this evidence, Anthony successfully rebutted Perino’s prima facie case for res ipsa loquitur, and the county court committed reversible error in considering res ipsa loquitur as the basis of its decision in favor of Perino.
Although the parties argue that the issue on appeal is “exclusive control,” this Court holds that the doctrine of res ipsa loquitur simply is inapplicable in this case. Without any evidence of the cause of the injury, the doctrine cannot be invoked.
Anthony’s second issue on appeal, that the county court erred in failing to grant his Motion for a Directed Verdict, need not be reached.  It is therefore
 Anthony and plaintiff’s “expert” Dr. Cox both testified that the area showed some “lysis,” a general bone abnormality characterized by less whiteness than would be shown on a normal x-ray of bone.
 Testimony of Dr. Cox (T. at 49).
 Testimony of Perino (T. at p. 41-42).
The Third District Court of Appeals has
correctly re-phrased the first element of res ipsa loquitur, stating
that the doctrine requires proof that “the cause of the injury was under
the exclusive control of the defendant.” Kenyon v. Miller,
756 So.2d 133, 135 (
 Anthony argues that because Perino had not yet raised res ipsa loquitur, the county court should have granted a directed verdict on the grounds. Anthony also argues that a directed verdict was appropriate because Perino failed to establish a breach of the standard of care and presented no evidence of causation. Given the relaxed nature of pleadings practice in the county court and that res ipsa loquitur is a rule of evidence and not a separate cause of action, the county court did not err in denying the motion on the grounds that Perino failed to invoke the doctrine of res ipsa loquitur during her case-in-chief. The county court did find that Dr. Cox’s testimony established a standard of care, although it makes no mention of evidence concerning breach of that standard or evidence of causation. Because the county court committed reversible error when it invoked the doctrine of res ipsa loquitur, it was not necessary to reach a conclusion regarding this point of error.