The Associated Press and the Daily News both reported last week that an injured restaurant patron, Raina Kumra, filed a New York personal injury lawsuit against the White Slab Palace restaurant in lower Manhattan after a stuffed moose head fell from its wall onto her head. The restaurant first opened its doors for business only last February. Her lawsuit claims damages consisting of a concussion, loss of cognitive skills, chronic neck pain, dizzy spells, fatigue and anxiety. The moose head weighed 150 pounds and sported 3-foot-wide antlers.
When this Central New York personal injury lawyer read this story, my first thought was in Latin: “Res ipsa loquitur”. No, I don’t speak Latin. This is a legal doctrine, taught to all first year law students, which allows an injured plaintiff to use circumstantial evidence to prove negligence. In Latin, the phrase means “the thing speaks for itself.” In order to invoke the doctrine, the injured plaintiff has to show that the injury-producing event normally would not happen in the absence of some negligence. (Here, does a moose head just fall from a wall unless someone failed to secure it properly?). The injured person also has to show that the object that caused the injury (here, a moose head) was in the exclusive control of the defendant. The plaintiff must sufficiently eliminate other possible causes, including the conduct of the plaintiff herself or of other parties who might have tampered with the object.
The theory is often used in falling object cases. We at Michaels & Smolak have brought several claims based on the theory of “resi ipsa loquitur”, mostly when merchandise falls from a shelf onto a shopper at big-box stores such as Wal-Mart, but also in our New York medical malpractice lawsuits where a doctor leaves a foreign object, such as a surgical sponge, inside the patient.
When I first read of this falling moose-head case, I thought it was strong one. How does a moose head suddenly become dislodged from a wall at a restaurant that has been open less than a year unless the owner somehow failed to secure it properly? But since I first read the story, a witness has come forward who says that he saw another patron tugging on a balloon tied to the moose head’s antlers in the moments before it fell. If this is so, it puts a dent in the res ipsa loquitur theory; perhaps the balloon-tugging patron caused it to become dislodged rather than the owner’s failure to secure it. Still, it would seem a 150-pound moose head should be sufficiently secured so as to resist a little tugging.
Will Kumra prevail? Stay tuned. The New York press seems to have gotten a kick out of this story, so we will surely hear more . . ..