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Res Ipsa Loquitur - Post-Mortem Injuries to Corpse

Martin v. Comfort Touch Transport, et al., [Ms. 2170288, Aug. 31, 2018] __ So. 3d __ (Ala. Civ. App. 2018). This unanimous decision by Judge Donaldson affirms in part and reverses in part summary judgments entered by the Madison Circuit Court in favor of the Comfort Touch defendants, who transported the decedent’s body following her death, and the Valhalla defendants who prepared the body and handled the decedent’s funeral arrangements. Summary judgment was affirmed as to all claims except for the negligence claims against the Comfort Touch Defendants based upon the doctrine of res ipsa loquitur as it related to a post-mortem head wound. The court noted that

“a plaintiff is not required in every case to show a specific instrumentality that caused the injury.” Ward v. Forrester Day Care, Inc., 547 So. 2d 410, 414 (Ala. 1989). A plaintiff can also connect negligence to a defendant “by showing that ... ‘all reasonably probable causes were under the exclusive control of the defendant.’” Ward, 547 So. 2d at 414 (quoting Restatement (Second) of Torts § 328D (1965)).

Ms. *21 (emphasis in the original). The court held that as to alleged abrasion injuries to the decedent’s head and hand, “the doctrine of res ipsa loquitur would not apply because the evidence indicates that those injuries could have occurred without the negligence of any defendant.” Ms. *22. However, the court reached a different conclusion with the post-mortem injuries to the decedent’s head because “‘the circumstances [are] such that according to common knowledge and the experience of mankind the accident could not have happened if those having control of the management had not been negligent.’” Ms. *23, quoting Alabama Power Co. v. Berry, 254 Ala. 228, 236, 48 So. 2d 231, 238 (1950).

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