58. Should the trial judge permit the case to go to the jury?

Res ipsa loquitur is a doctrine that permits the factfinder to infer negligence when there is not direct evidence that the defendant acted negligently. To establish res ipsa loquitur, the plaintiff must show (i) the event that happened is one that usually does not occur absent the negligence of a party; (ii) the harm was caused by something in the defendant's exclusive control; and (iii) the plaintiff is not the one who caused the event to occur. Courts generally apply the «exclusive control» element liberally. If the above elements are met, res ipsa loquitur creates an inference of negligence.

B is correct. Here, however, these elements are not met. First, the facts do not state the plaintiff presented evidence establishing his fall was not attributable to him (i.e. that he did not drop the peel) or that the store aisles are in the store's exclusive control (customers, from minute-to-minute, also affect the state of the aisles significantly). He has therefore not met the requirements for using res ipsa loquitur. Without the res ipsa loquitur doctrine, the plaintiff is left with no evidence that the defendant store failed to comply with its standard negligence duty owed to customers: to inspect and make safe the premises as to any nonobvious, dangerous conditions. Further, note that this question states that the banana peel was «fresh and unblemished» to convey that there is no evidence the store had time to comply with its duty. The store has a duty to keep its aisles clean and safe, but it does not have a duty to do so instantly upon any debris or hazard forming.

A is incorrect. The customer's failure to watch where he stepped is contributory negligence, but the MBE instructs test-takers to apply pure comparative negligence. Under that doctrine, a negligent plaintiff may still recover against a negligent defendant. Thus, this answer choice does not provide a valid basis for preventing the case from going to the jury.

C is incorrect. Even if the banana peel came from the store's displays, that does not alone provide a basis to proceed to the jury on any tort claim on these facts. The most applicable claim would be negligence for failing to maintain the store premises in a safe condition. However, the mere fact that the banana came from the store does not establish the store was negligent for the banana peel being on the floor, as described above.

D is incorrect. It is true that the store could foresee that customers might slip on its products, such as a banana peel. However, that does not establish the remaining elements of negligence, including breach of the duty the store owed its customers to prevent such harms. There are no facts indicating the store failed to exercise reasonable care in its efforts to protect customers, as described above. Thus, this answer provides an insufficient rationale for sending the case to the jury.