Dye v. Burdick

¶1concurring in part, dissenting in part. I agree with the Court, because of the testimony of Edward C. Grubbs, consulting engineer, that there was a jury question relative to whether the dam had been improperly designed and negligently constructed (the witness stated that the spillway as designed was completely inadequate to carry the water), and also whether the dam had been properly maintained, the evidence of Grubbs reflecting that growing trees, grass, rock, and debris were allowed to accumulate in the spillway.1 But I very much disagree with the majority that this is a case which should have veen allowed to also go to the jury on the doctrine of res ipsa loquitur.

¶2In the first place, I am firmly of the opinion that dams can break or collapse without negligence on the part of anyone, and this condition can be caused by excessive rainfall, earthquakes, etc. The record reflects that from June 6th through June 9th, in the area, there had been over nine inches of rain, and on the 8th and 9th there was considerable flooding in the area, creeks leaving their boundaries, and bridges and roads being washed out. In fact, the Benton County area was declared a disaster area by the President of the United States due to this flood. For res ipsa to apply, it must be shown that the injury or damage was caused by something under the exclusive control of appellees at the time of the occurrence. Certainly, no one would contend that appellees controlled the weather or the rainfall, and since I consider this to be, at least, a major reason for the damage sustained, I cannot see how the doctrine of res ipsa enters into the picture. This is not my view alone, for the Supreme Court of Iowa in Eaves v. Ottumwa, 38 N.W. 2d 761, used the same logic. There, a raceway leading from a river to defendant’s hydroelectric plant overflowed in a time of flood. The opening of the flood gates, which kept the level of the water in the raceway at that of the river, would have increased its carrying capacity, but these gates were not opened until hours after this could have been done. In its discussion, the Court said:

“Here the physical cause of plaintiff’s damage was overflow from the race. Defendant’s answer admits the race, hydroelectric plant and gates were under its exclusive control and management although it denies the res ipsa doctrine is applicable. Although defendant was in exclusive control of the race and gates, it cannot fairly be said the flood water flowing into the race from the river was exclusively under defendant’s control and management. Such flood water is one of the instrumentalities that caused the damage.

Our decisions involving the res ipsa rule have uniformly stressed the necessity of defendant’s complete and exclusive control of the instrumentalities that cause the injury. (Citing cases.)

Further, we think it may not fairly be said that in the ordinary course of things or, as frequently stated, according to common experience, water does not overflow the banks of such a race where those in control of the race exercise reasonable care. Evidence which may show negligence in this particular case is not to be considered in determining this question.

Certainly it is common experience for natural water courses to overflow their banks in time of heavy rains without lack of care by any human agency. Flooding of lowlands along swollen streams in wet seasons is common. It appears here the Des Moines River overflowed its banks and flooded other portions of Ottumwa at this particular time. Turkey Island and territory on all sides of it were under water. The dams were scarcely visible. That the water which caused the damage here escaped from an artificial channel that carries water from the river rather than from the river itself seems insufficient basis for an inference the occurrence was the result of negligence.”

¶3The doctrine of res ipsa loquitur is strongly predicated on two premises; first, that the damage would not have occurred unless somebody was negligent, and second, that the person allegedly causing the damage had exclusive control of the instrument, meaning that he had information concerning its functions that other people would not have. For instance, the res ipsa loquitur doctrine is generally applied in “soft drink” cases, where it is alleged that foreign matter in the drink consumed caused injury. Of course, the average person knows nothing about the procedure of manufacturing soft drinks, but more than that, the injured party is not in a position to establish negligence after the bottle has exploded and pertinent evidence has thus vanished. This leaves only the defendant with any exact knowledge of the cause of the mishap. Yet, we can certainly say that flies, spiders, or other foreign objects do not get into a bottled soft drink unless somebody was negligent. That is certainly a far cry from the case presently before us! As stated in Eaves v. Ottumwa, supra:

“The underlying reason for the res ipsa rule or, as Dean Wigmore expresses it, ‘the particular force and justice’ thereof, is ‘that the chief evidence of the true cause ... is practically accessible to him (defendant) but inaccessible to the injured person.’ (Citing authorities.)

It does not appear that the chief evidence of the cause of the overflow from the race was accessible to defendant but inaccessible to plaintiffs. Apparently such evidence was equally accessible to plaintiffs as to defendant. The underlying reason for the application of the res ipsa rule is therefore not here present.”

¶4Here, it is obvious that appellants were not precluded, after the dam washed out, from offering evidence of specific acts of negligence; in fact, they did do so, and the reversal on Points I and II is based on that evidence. Accordingly, I cannot see where res ipsa has any place in this case at all, and therefore respectfully dissent to this portion of the opinion.