The elements of the res ipsa loquitur doctrine are well established in Missouri, and the second element requires control over the instrumentality that caused the injury at the time the injury occurred. Plato Reorganized Sch. Dist. No.R–5 of Tex. v. Intercounty Elec. Coop. Ass'n, 425 S.W.2d 914, 917–18 (Mo.1968); Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, 90 (1949); Payne v. Carson, 224 S.W.2d 60, 62 (Mo.1949); Anderton v. Downs, 459 S.W.2d 101, 104 (Mo.App.K.C.1970); Shemwell v. Ailshire, 384 S.W.2d 104, 106 (Mo.App.K.C.1964); Hutchins v. Southview Golf Club, Inc., 343 S.W.2d 223, 224 (Mo.App.K.C.1960); Kees v. Canada Dry Ginger Ale, 225 S.W.2d 169, 171 (Mo.App.K.C.1949). Despite the well-developed case law on this issue, the Greens direct our attention to cases that include the following language: “The requirement that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers to the right of control at the time the negligence was committed.”
The fact that the pilot in Tompkins died and the only testimony on the crash was by conflicting expert opinions does not alter the analysis because here, Dardis's testimony of mechanical failure was controverted by three pilot-witnesses, leaving two equally plausible theories. See also Winans, 705 F.2d at 1455; Web v. Zurich Ins. Co., 194 So.2d 436 (La.App. 1966) ( res ipsa could not be applied to manufacturer after delivery because of lack of control); Shemwell v. Ailshire, 384 S.W.2d 104 (Mo.App. 1964) (owner who rented aircraft not liable under res ipsa when engine failed on landing because pilot had control); Lejune v. Collard, 44 So.2d 504, 506 (La.App. 1950) (where there was evidence of either mechanical failure or negligence by student pilot, for res ipsa purposes, pilot was in control of plane, not flight school owner). Turbines also argues that Dardis failed to show the applicability of res ipsa loquitur because he "failed to show that pilot error did not contribute to the accident."