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February 12, 1981

Kim CALABRETTA, an infant, by her mother, Jean Calabretta, and Umberto Calabretta and Jean Calabretta, Individually, Plaintiffs,
NATIONAL AIRLINES, INC. and Boeing Co., Defendants

The opinion of the court was delivered by: BRAMWELL

Defendants Boeing Airlines Co. ("Boeing") and National Airlines, Inc. ("National") have moved for summary judgment in this action for personal injuries. *fn1" Rule 56(c) of the Federal Rules of Civil Procedure permits a district court to grant summary judgment when an action presents no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. See Adickes v. S. H. Kress and Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978).

Prior to applying the Rule 56(c) standard to the instant case, a brief review of its factual predicate is in order. *fn2" This case had its genesis in events surrounding the descent of National Airlines flight # 61 on July 13, 1974. The plaintiff, Kim Calabretta, a passenger on that flight, experienced excruciating pain in her left ear during the plane's descent. This pain caused the plaintiff severe discomfort while the plane landed, and persisted for a short time thereafter. Nevertheless, the plaintiff and her family proceeded as planned with their vacation in Florida's Disney World.

 Seven weeks later, however, the plaintiff reported that she had lost her hearing in her left ear. Due to her mother's contraction of rubella during her pregnancy with Kim Calabretta, the plaintiff already suffered from a severe loss of hearing in her right ear. Alleging that defendant National was negligent in its manner of controlling the aircraft cabin pressure on flight # 61, and that this negligence proximately caused the loss of her auditory capabilities in her left ear, the plaintiff commenced the instant action against National in October of 1975. In mid 1977, the plaintiff joined Boeing as a defendant in this action, alleging that the plaintiff's condition also may have been proximately caused by either negligent design and manufacture by Boeing of the airplane used on flight # 61, or by Boeing's improper warnings or instructions to National regarding the operation of the aircraft's pressurization system.

 In the instant motion, Boeing maintains that the legal theories of liability employed by the plaintiff against it have no basis in fact. To support this contention, Boeing asks this Court to observe that the plaintiff's discovery failed to unearth any evidence to bolster her claim that the Boeing 727 at issue was defectively designed or manufactured so as to warrant a jury's finding of liability under Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 403 N.E.2d 440, 426 N.Y.S.2d 717 (1980). See also Bolm v. Triumph Corp., 71 App.Div.2d 429, 422 N.Y.S.2d 969 (4th Dep't. 1979). Moreover, Boeing argues that the Pretrial Order filed in this action on January 29, 1980 reflects no evidentiary foundation with which the plaintiff directly could prove that Boeing is subject to liability for the injuries sustained by the plaintiff. Similarly, National contends that, on the basis of the plaintiff's anticipated proof at trial, there is no possibility that the plaintiff will be able to establish a prima facie case against National.

 In opposition to the assertions of the defendants, the plaintiff argues that the apparent absence of direct evidence substantiating her claim should not be dispositive of the summary judgment motions. Rather, the plaintiff contends that, under the doctrine of res ipsa loquitur, a question of material fact regarding the liability of both defendants for the plaintiff's injuries becomes readily apparent.

 The term res ipsa loquitur denotes reference to a species of circumstantial evidence. In New York, in order for the doctrine to apply, three requisites must be satisfied:

1. the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;
2. it must be caused by an agency or instrumentality within the exclusive control of the defendant;
3. it must not have been due to any voluntary action or contribution on the part of the plaintiff.

 Corcoran v. Banner Super Market, 19 N.Y.2d 425, 227 N.E.2d 304, 280 N.Y.S.2d 385 (1967). If these elements are established, the res ipsa doctrine permits the jury to draw an inference of negligence against the defendant or defendants. United States v. Ridolfi, 318 F.2d 467 (2d Cir. 1963); George Foltis Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455 (1941). For the plaintiff to recover damages, however, the res ipsa inference must withstand the rebuttal evidence proffered by the defendant or defendants. Traub v. Holland-America Line, 278 F. Supp. 814 (S.D.N.Y.1967); Fogal v. Genesee Hospital, 41 App.Div.2d 468, 344 N.Y.S.2d 552 (4th Dep't 1973).

 1. Inference that Someone was Negligent

 The first element of the New York res ipsa formulation is met if, in the abstract, the event at issue is one that gives rise to the "reasonable probability that in the ordinary course of events the (incident) would not have occurred without negligence." United States v. Ridolfi, 318 F.2d at 470. Usually, such an inference may be drawn without the aid of expert testimony. W. Prosser, Torts (4th Ed. 1971) ┬ž 39 at p. 217. This is

merely a reflection of the principle that a jury of laymen ordinarily do not need expert testimony on the question of negligence, itself a function of the conduct of reasonable men.

 Pipers v. Rosenow, 39 App.Div.2d 240, 243, 333 N.Y.S.2d 480, 483 (2nd Dep't 1972). The implementation of expert testimony by the defendant in its rebuttal case, however, "may destroy an inference ...

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