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Man Injured While Eating Ice Cream Not Entitled to New Trial

May 17, 2016

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A recent New Jersey court examined the applicability of the doctrine of “res ipsa loquitor” in a personal injury case. In the case of <em><a href="http://www.judiciary.state.nj.us/opinions/a1451-14.pdf">Lukmann v. Wenesco Restaurant d/b/a Wendy’s</a>,</em> the plaintiff sued for personal injuries after he bit into a coin while eating a dessert from Wendy’s.  The ice cream dessert from Wendy’s was served in a cup with a plastic dome that had an opening of two inches in diameter into which a utensil could be inserted.  After purchasing the dessert and receiving $.89 in change, the plaintiff walked to a nearby movie theater, and ate the dessert towards the end of the movie.  While eating the ice cream, he allegedly felt an object hit the front of his teeth as he bit down, causing a sharp pain and injury.
The case proceeded to trial, and plaintiff requested that the judge include a “res ipsa loquitur” charge to the jury.  Res Ipsa Loquitur is a doctrine that infers negligence from the very nature of an accident or injury, in the absence of direct evidence of defendant’s actions.  The Judge denied the request, noting that the res ipsa rule could not be invoked since it was not shown that the instrumentality causing the injury was within the control of the defendant at the time of the mishap.  The jury returned a verdict of no cause of action, and the plaintiff’s complaint was dismissed.
Plaintiff appealed, arguing that the judge erred in not charging the jury with res ipsa loquitur. The Appellate Court noted that the dessert was not in the exclusive control of the defendant, and there was sufficient evidence to infer negligence on behalf of the plaintiff himself, including undisputed evidence that he received change after purchasing the ice cream, which could have fallen into the dessert.  Accordingly, the Appellate Court upheld the trial judge’s decision, and the jury verdict was upheld.    This case shows that the res ipsa loquitor doctrine can only be used when specific elements are met.  A defendant should always seek to overcome a res ipsa jury instruction if the object causing the injury was outside of the defendant’s exclusive control.
Thanks to Heather Aquino for her contribution to this post.
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