                            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

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 defen-
dants 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 occur-
rence is so unusual that, absent a reasonable justification,
the person in control of the situation should be held respon-
sible. Cergnul v. Heritage Inn, Inc., 785 N.E.2d 328, 332


1
  In the district court Maroules also made a straight forward
negligence claim. Maroules raises only the res ipsa loquitur
arguments on appeal.
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 circum-
stantial 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 mainte-
nance 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 possi-
bility that a third party may have negligently manufac-
tured, installed, or maintained the studs does not preclude
a finding that Jumbo had control over the injuring instru-
mentality. In fact, a plaintiff may point to several alterna-
tive 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 defen-
dants—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 instrumen-
tality 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 fact-
finder cannot determine whether a defendant’s conduct
fell below the applicable standard of care without tech-
nical 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 experi-
    ence 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 malprac-
tice 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 reason-
able 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
