Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)

Citation: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Parent Document: Berish v. Bornstein, 21 Mass. L. Rptr. 530 (2006)
Jurisdiction: Massachusetts (state)
Effective Date: 2006-05-22
Original Source: https://www.courtlistener.com/opinion/8356288/berish-v-bornstein/ ↗

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Finally, the Trustees did not establish by a preponderance of the evidence that the defendants failed to use reasonable care in designing and constructing the cut-in decks in 15 units at the condominium. Despite the lack of expert testimony concerning the cut-in decks, the Trustees argue that this Court may find negligence by applying the doctrine of res ipsa loquitur. That doctrine permits the trier of fact to draw an inference of negligence in the absence of a finding of a specific cause of the occurrence, where the accident is of the type or kind that ordinarily would not happen unless the defendant was negligent in some respect and other responsible causes, including the conduct of the plaintiff, are sufficiently eliminated by the evidence. See Enrich v. Windmere Corp., 416 Mass. 83, 88 (1993); Wilson v. Honeywell, Inc., 409 Mass. 803, 805-06 (1991). The mere occurrence of the leaking of water into a condominium unit in the area of a cut-in deck is not the sort of event which shows negligence as a cause, permitting the application of the res ipsa loquitur doctrine. In light of the lack of expert testimony regarding the design and construction of the cut-in decks, the Trustees have failed to establish negligence on the part of the defendants. IV. DAMAGES

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