In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3248

CHRISTINE MAROULES,

Plaintiff-Appellant,

v.

JUMBO, INC. and JAMES E. WINDSOR,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2: 03-C-14—Andrew P. Rodovich, Magistrate Judge.

____________

ARGUED SEPTEMBER 20, 2005—DECIDED JUNE 20, 2006

____________

Before CUDAHY, KANNE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Ordinarily we count on gravity

to keep heavy items in place; and so when flour barrels,

armchairs, and truck wheels become airborne we assume

first that something has gone wrong. Such events, lawyers

say, speak for themselves, or in Latin, “res ipsa loquitur,”

and the blame for any resulting injury can be imputed to

the person who had control of the item before it became

a dangerous projectile. Christine Maroules asks the court to

adopt this view to delegate to the owner of Jumbo, Inc.

trucking company and Jumbo’s driver, James E. Windsor

(together, “Jumbo”), blame for injuries she sustained when

a wheel broke free from the truck upon which it was
2 No. 04-3248

mounted, flew through the air, and crashed through the

front passenger side of her car. Because she has failed to

demonstrate the elements necessary for res ipsa loquitur to

apply, however, we affirm the decision of the district court

granting summary judgment to Jumbo.

I.

At the time of the accident on January 4, 2000, Windsor

was operating the semi-tractor-trailer in question for his

employer, Jumbo Inc., driving westbound through Indiana

on Interstate Route 80. Windsor did not realize that the

two-wheel unit (tandems), consisting of two tires and two

rims attached by studs to a wheel assembly, had detached

from his truck until he was stopped by an Indiana State

Trooper at the border between Illinois and Indiana. At that

point he inspected his truck and determined that five or six

of the ten studs upon which the wheel unit was mounted

were broken and sheared off, although the thread of the

portions of the studs that had remained on the trailer did

not appear to be worn. The nuts attaching the wheel unit

were also missing, and the four or five studs that remained

were broken or sheered off. According to Windsor’s affidavit,

he had inspected the nuts just a few hours prior to the

accident, as part of his routine walk-around inspection

which he conducted at the beginning and end of each day

and every time he started the vehicle. As part of his

inspection he checked the physical condition of the tires,

rims, lugs, studs, nuts, and tires’ air pressure. He testified

that upon his inspection, the studs and nuts were not loose

in any way. Philip Simonsen, the president of Jumbo Inc.,

testified that the trailer, which he purchased as a used

vehicle in 1999, had received a full annual inspection in

compliance with U.S. Department of Transportation

regulations just five weeks before the accident. Simonsen

also testified that Jumbo hires a third-party company to
No. 04-3248 3

1 In the district court Maroules also made a straight forward

negligence claim. Maroules raises only the res ipsa loquitur

arguments on appeal.

inspect, maintain, and repair its trailers and all of their

parts, including the wheel studs, which it had done on

numerous occasions prior to the accident. Mr. Windsor

testified that the bolts in question can last for several years

and “can go until you have a problem,” that is until they

turn brown or one breaks off, at which point all studs

should be replaced as they tend to reach their breaking

points at around the same time. (R. at 40, Ex. 2, p. 78).

Maroules contends that ordinary care required the defendants to “take notice of the tendency of parts of machinery

to decay from age, or wear out by use, and the law requires

them to make reasonable inspection of the various parts of

machinery from time to time for the purpose of discovering

any defective parts, to the end such parts may be replaced

or repaired.” (Maroules brief at 22). In short, Maroules

contends that Jumbo should have replaced the wheel studs

periodically and prophylactically instead of waiting for

them to break or show other indicia of failure.

II.

In response to Jumbo’s summary judgment claim,

Maroules asked the district court to apply the doctrine of

res ipsa loquitur.1

 Res ipsa loquitur is a shortcut to a

negligence claim. Although negligence may not be inferred

from the mere fact that an injury occurred, it may

be inferred from the circumstances surrounding the injury.

K-Mart v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct. App. 1990).

The doctrine recognizes that in some situations an occurrence is so unusual that, absent a reasonable justification,

the person in control of the situation should be held responsible. Cergnul v. Heritage Inn, Inc., 785 N.E.2d 328, 332
4 No. 04-3248

(Ind. Ct. App. 2003). In other words, as the Latin describes,

“the thing speaks for itself.” See Byrne v. Boadle, 2 H & C

722, 159 Eng. Rep. 299 (1863) (the original res ipsa loquitur

case involving a flour barrel falling out of a warehouse

window). The central question in any res ipsa loquitur case

is whether the incident more probably resulted from the

defendant’s negligence than from some other cause. Deuitch

v. Fleming, 746 N.E.2d 993, 999 (Ind. Ct. App. 2001). To

establish this inference of negligence, the plaintiff must

demonstrate: (1) that the injuring instrumentality was

within the exclusive management and control of the

defendant, and (2) that the accident is of the type that does

not ordinarily happen if those who have the management

and control exercise proper care. Balfour v. Kimberly Home

Health Care, Inc., 830 N.E.2d 145, 148 (Ind. Ct. App. 2005).

Under Indiana law, res ipsa loquitur is an evidentiary

doctrine that allows an inference of negligence to be drawn

under certain factual circumstances. See Gold v. Ishak, 720

N.E.2d 1175, 1180 (Ind. Ct. App. 1999). Once the plaintiff

has met the burden of demonstrating the control and due

care prongs of res ipsa loquitur, the doctrine operates to

permit an inference of negligence based upon the circumstantial evidence. Ross v. Olson, 825 N.E.2d 890, 894 (Ind.

Ct. App. 2005). The inference, however, is just that—a

plaintiff does not win her case merely because she has met

the res ipsa loquitur requirements. Rector v. Oliver, 809

N.E.2d 887, 891 (Ind. Ct. App. 2004), transfer denied, 822

N.E.2d 981 (Ind. 2002). A successful res ipsa loquitur

showing simply creates an inference which the trier of fact

may choose to accept or not. Id.

Whether the doctrine of res ipsa loquitur applies in any

given negligence case is a mixed question of law and fact.

Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005).

The question of law is whether the plaintiff’s evidence

includes all of the underlying elements of res ipsa loquitur.

Id. at 704. The determination for the trier of fact is whether
No. 04-3248 5

the permissible inference is to be drawn. Shull v. B.F.

Goodrich Co., 477 N.E.2d 924, 928 (Ind. Ct. App. 1985). A

court may enter summary judgment when it is convinced

that there are no genuine issues as to any material fact and

that the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). Consequently, faced with the

defendant’s summary judgment motion, the district court’s

task was to determine whether Maroules had met the

underlying requirements of res ipsa loquitur. We review the

grant of summary judgment de novo because it presents the

purely legal question of whether the underlying elements of

res ipsa loquitur exist. See Smith v. Sheahan, 189 F.3d 529,

532 (7th Cir. 1999). Jumbo is entitled to a judgment as a

matter of law if Maroules cannot make a sufficient showing

on an essential element of her case with respect to which

she has the burden of proof. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). In this case, it is Maroules’ burden to

establish that (1) Jumbo had exclusive management and

control of the runaway wheel assembly and (2) the accident

is of the type that does not ordinarily happen if those who

have the management and control exercise proper care.

Gipson, 563 N.E.2d at 669.

The defendants begin by denying that they had exclusive

control. To support this proposition, they contend that

they had no role in manufacturing the trailer or its wheel

studs; they had no control over the inspection and maintenance of the trailer or its wheel studs prior to the time that

Jumbo purchased the trailer in 1999; and that Jumbo does

not maintain, service, or repair its trailers and their parts,

but instead relinquishes control every time it sends its

trailers to an outside third party maintenance company to

do this work.

Jumbo’s argument is appealing on the surface when one

contemplates any number of alternative theories for the

accident: the stud manufacturer could have negligently

or knowingly manufactured defective studs, the mainte-
6 No. 04-3248

nance business could have used a faulty power tool to

tighten the bolts, or a vandal could have sabotaged the

truck wheels. Recall, however, that the doctrine of res ipsa

loquitur does not hand victory to the plaintiff; it merely

creates an inference of negligence that the trier of fact,

upon hearing all of the evidence, may or may not choose to

accept. See Rector, 809 N.E.2d at 891. Consequently, the

concept of control under Indiana’s res ipsa loquitur case law

is expansive. Id. at 890. To prove the “exclusive control”

requirement of res ipsa loquitur, the plaintiff simply is

required to show either that a specific instrument caused

the injury and that the defendant had control over that

instrument or that any reasonably probable causes for the

injury were under the control of the defendant. Slease v.

Hughbanks, 684 N.E.2d 496, 499 (Ind. Ct. App. 1997).

Indiana case law instructs that a defendant need not be in

control of the causative instrumentality at the exact

moment of injury, provided the defendant was the last

person in control. Shull, 477 N.E.2d at 931. Furthermore,

the possibility of multiple causes or multiple defendants

does not automatically defeat the application of res ipsa

loquitur. Rector, 809 N.E.2d at 890. It is not necessary for

the plaintiff to exclude every other possibility other than

the defendant’s negligence as a cause of the injury. Id. at

891; Gipson, 563 N.E.2d at 671. In other words, the possibility that a third party may have negligently manufactured, installed, or maintained the studs does not preclude

a finding that Jumbo had control over the injuring instrumentality. In fact, a plaintiff may point to several alternative causes of injury and allow the jury to determine which,

if any, instrumentality caused the injury. Slease, 684

N.E.2d at 499. As the Indiana Appellate court explained,

“[a]ll inferences from the evidence, including those arising

from the res ipsa doctrine, are to be placed in the scales to

be weighed by the trier of fact.” Gipson, 563 N.E.2d at 671.

If the plaintiff cannot, however, identify any potential

causes and show that they were in the exclusive control of
No. 04-3248 7

the defendant, the res ipsa loquitur claim must fail. Slease,

684 N.E.2d at 499. Maroules has identified at least one

potential cause of her injury in the control of the defendants—the failure to take notice that the studs might decay

and to replace them before they do. We agree with the

district court, therefore, that Maroules has demonstrated

the element of exclusive control as defined expansively

under Indiana law.

Maroules however, must also demonstrate that the

accident is of the type that does not ordinally happen if

those who have the management and control exercise

proper care. Finding that Maroules had failed this second

res ipsa loquitur requirement, the district court concluded

that, “[u]nlike the numerous cases cited by the plaintiff,

there is no evidence in this case that the defendants’

conduct fell below the standard of care that the law imposes

on the drivers or owners of tractor-trailers.” (R. at 46, p.

13). Maroules objects to the district court’s statement that

“the plaintiff has not come forth with any circumstantial

evidence from which a reasonable jury could find that the

defendants failed to exercise reasonable care.” (R. at 46, p.

12). It is unclear to which requirement Maroules objects. It

is true that the doctrine of res ipsa loquitur does not require

a plaintiff to submit evidence of causation. Gipson, 563

N.E.2d at 671. After all, res ipsa loquitur is a doctrine of

common sense. It allows a trier of fact to draw an inference

of negligence when evidence of causation is lacking. Id. at

671. We do not, however, interpret the district court’s

language as demanding anything more than the usual

requirements for the application of res ipsa loquitur. To

invoke the doctrine a plaintiff must “present evidence that

. . . the accident is one which in the ordinary course of

things does not happen if those who control the instrumentality use proper care.” Cergnul, 785 N.E.2d at 331. And

although a plaintiff may rely upon common sense and

experience or expert testimony, the plaintiff still has the
8 No. 04-3248

burden of showing that the injury was one that would not

ordinarily occur in the absence of proper care on the part of

those controlling the instrumentality. Ross, 825 N.E.2d

at 894.

Although res ipsa loquitur is a doctrine of common sense,

expert testimony is required when the issue of care is

beyond the realm of the layperson, that is, where a factfinder cannot determine whether a defendant’s conduct

fell below the applicable standard of care without technical input from an expert witness. Syfu, 826 N.E.2d at 704-

05. The Shull court cited Prosser for the proposition that:

[i]n the usual [res ipsa] case the basis of past experience from which the conclusion may be drawn that such

events usually do not occur without negligence, is one

common to the whole community, upon which the jury

are simply permitted to rely. Even where such a basis

of common knowledge is lacking, however, expert

testimony may provide a sufficient foundation.

Shull, 477 N.E.2d at 927 (citing Prosser, Handbook of the

Law of Torts, § 39, P.215 (4th Ed. 1971)). Although the need

for expert testimony generally arises in cases involving

medical malpractice where the issues surrounding diagnosis

and treatment are complex, the notion that a plaintiff may

establish the second prong of res ipsa loquitur—the “proper

care” prong—by using either common knowledge or expert

testimony applies to cases outside of the medical malpractice realm as well. See, e.g., Newell v. Westinghouse Elec.

Corp., 36 F.3d 576, 581 (7th Cir. 1994); Shambaugh & Son

v. Carlisle, 730 N.E.2d 796, 798 (Ind. Ct. App. 2000),

vacated on other grounds, 763 N.E.2d 459 (Ind. 2002);

Shull, 477 N.E.2d at 929. This case presents questions that

simply cannot be determined by a fact-finder without some

understanding of the standard of proper or reasonable care

in the industry. See Syfu, 826 N.E.2d at 705; Shull, 477

N.E.2d at 927. After all, Jumbo claims that the proper care
No. 04-3248 9

of wheel assembly studs involves regular visual inspection

and replacement only when any stud on the wheel shows

signs of wear or breakage. (R. at 40, Ex. 2, p. 78). Maroules

claims, instead, that the standard of care requires that

truck owners and operators “take notice of the tendency of

parts of machinery to decay from age, or wear out by use, .

. . make reasonable inspection [and] . . . change[ ] the wheel

studs periodically instead of waiting for one of them to

break.” (Appellant Br. at 22). Only expert testimony, and

not our own common sense, can tell us which is correct.

Furthermore, only an expert could tell us whether this is

the type of accident that might happen even if those who

have management and control of trucks and their wheel

assemblies exercise the kind of care Maroules proposes. In

other words, it is possible that this type of accident happens

randomly even when truck drivers and owners periodically

inspect their wheel assemblies and change the wheel

studs prophylactically as Maroules argues they should. Our

past experience and common knowledge is not sufficient to

answer these questions. Consequently, we conclude that

Maroules has failed to show by common sense or expert

testimony that the injury was one that would not ordinarily

occur in the absence of proper care on the part of those

controlling the instrumentality. Syfu, 826 N.E.2d at 705.

On a final note, much ado has been made in this case

about the intersection of Indiana’s res ipsa loquitur law and

the federal procedural rules for summary judgment. At oral

argument, Maroules’ attorney stated that he did not think

it appropriate for federal summary judgment procedure to

upset Indiana state law concerning res ipsa loquitur.

Although state law provides the substantive law in a

diversity action, summary judgment procedure is governed

by federal law. Jean v. Dugan, 20 F.3d 255, 262-63 (7th Cir.

1994), Mayer v. Gary Partners and Co., Ltd., 29 F.3d 330,

334 (7th Cir. 1994). Federal law defines the standard for

evaluating the sufficiency of the evidence. Mayer, 29 F.3d at
10 No. 04-3248

335. If reasonable persons could not find that the evidence

justifies a decision for a party on each essential element,

the court can grant summary judgment using federal

standards. Id. Federal courts may therefore grant summary

judgment under Rule 56 upon concluding that no reasonable jury could return a verdict for the party opposing the

motion, even if the state would require the judge to submit

an identical case to the jury. McEwen v. Delta Air Lines,

Inc., 919 F.2d 58, 60 (7th Cir. 1990).

In any event, we do not think this case presents a conflict

between federal and state law. As Maroules argues, “[o]nce

the plaintiff presents evidence to bring herself within the

operation of res ipsa loquitur, the inference of negligence is

to be weighed by a jury and summary judgment is not

proper.” (Maroules Reply Br. at 8). As explained above,

however, Maroules, has not presented sufficient evidence to

bring herself within the operation of the res ipsa loquitur

doctrine. Consequently, summary judgment must be

granted for Jumbo, and the judgment of the district court is

AFFIRMED.
No. 04-3248 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-20-06