Res Ipsa Loquitur Requires Probable Defendant Responsibility When Vendor Control Is Shared

Case: Rateb Khouri v. Highland Park CVS, L.L.C. and CVS Pharmacy Inc.
Court: United States Court of Appeals for the Seventh Circuit
Date: June 11, 2026
Posture: Appeal after five-day bench trial; judgment for CVS affirmed.

1. Introduction

This premises-injury case arose from an incident at a Highland Park, Illinois CVS store. Rateb Khouri alleged that when he opened a beverage cooler and removed a bottle, an upper cooler shelf collapsed and dozens of bottles fell out, striking him and causing serious injuries. He sued the store entities (collectively, “CVS”) for negligence.

The central trial issue became whether CVS breached its duty of care—specifically, whether CVS negligently caused the shelf to collapse. With no direct proof of how the shelf became dislodged, Khouri relied on Illinois’s circumstantial-evidence doctrine of res ipsa loquitur. The district court, after a bench trial, found the doctrine inapplicable because the shelf and stocking processes were materially shared with third-party beverage vendors. Khouri also challenged two trial-management decisions: (i) exclusion of an interrogatory response and (ii) limits placed on his expert’s testimony.

2. Summary of the Opinion

The Seventh Circuit affirmed across the board. On negligence, it held that res ipsa loquitur failed on the “exclusive control” element because the evidence made it equally plausible that third-party beverage vendors—who stocked most products and conducted annual cooler “resets” removing and reinstalling shelves—caused the shelf to become unstable. Where responsibility is “plainly divided” and the evidence does not make CVS “more likely than not” responsible, Illinois law bars res ipsa loquitur.

On evidence, the court held the district judge did not abuse discretion by excluding CVS’s interrogatory response (“None at this time. Investigation continues.”) because it was not an admission of liability or probative of who caused the condition. A new appellate theory that CVS had a duty to supplement the interrogatory response under Rule 26(e) was deemed waived because it was not raised below. Finally, the court upheld limiting the expert’s testimony: the expert could opine on practices and observations, but not deliver outcome-determinative legal conclusions such as “a CVS employee caused the collapse” or “an employee should have noticed it.”

3. Analysis

3.1 Precedents Cited (and How They Shaped the Result)

A. Standards of review after a bench trial

• PNC Bank, Nat'l Ass'n v. Boytor, 109 F.4th 495 (7th Cir. 2024): Supplied the framework—legal conclusions reviewed de novo, factual findings for clear error, with heightened deference to credibility determinations.
• Morisch v. United States, 653 F.3d 522 (7th Cir. 2011): Reinforced that credibility calls are rarely disturbed absent “patently improbable” testimony or internal inconsistency.
• Ill. Liberty PAC v. Madigan, 904 F.3d 463 (7th Cir. 2018): Reiterated the “highly deferential” clear-error standard applied to post-bench-trial factfinding—important because Khouri’s appellate strategy depended heavily on recharacterizing factual inferences about vendors’ roles.

B. Illinois negligence elements and premises-liability pathways

• Smith v. United States, 860 F.3d 995 (7th Cir. 2017) (citing Calles v. Scripto-Tokai Corp., 864 N.E.2d 249 (Ill. 2007)): Restated the Illinois elements (duty, breach, proximate cause). The parties disputed breach.
• Newsom-Bogan v. Wendy's Old Fashioned Hamburgers of New York, Inc., 953 N.E.2d 427 (Ill. App. Ct. 2011): Provided the two classic routes to breach in premises cases—(i) defendant created the dangerous condition or (ii) defendant had notice and failed to remedy. Khouri focused on “creation,” not notice.

C. Res ipsa loquitur: elements, “exclusive control,” and divided responsibility

• Johnson v. Armstrong, 211 N.E.3d 355 (Ill. 2022): The opinion’s primary doctrinal anchor. It supplied (i) the two res ipsa elements and (ii) a modern explanation that “exclusive control” is a flexible proxy for responsibility—whether defendant is “more likely than not” responsible for the apparent negligent cause.
• Metz v. Cent. Ill. Elec. & Gas Co., 207 N.E.2d 305 (Ill. 1965): Provided the classic res ipsa formulation quoted in Johnson.
• Heastie v. Roberts, 877 N.E.2d 1064 (Ill. 2007): Supplied two key constraints:
  • “Exclusive control” is satisfied when the probable cause is one defendant had a duty to anticipate or guard against (flexibility).
  • But res ipsa fails when evidence supports plausible non-defendant explanations; the plaintiff must show defendant is the likely responsible actor, not merely a possible one.
• Britton v. Univ. of Chi. Hosps., 889 N.E.2d 706 (Ill. App. Ct. 2008): The closest factual analogue and the case the district court relied upon. There, res ipsa failed because many third parties used the revolving door; responsibility could not be pinned on the hospital without speculation. The Seventh Circuit used Britton to frame the core problem here: vendors and CVS both interacted with the cooler system such that assigning “exclusive control” to CVS would be guesswork.
• Bernardi v. Chi. Steel Container Corp., 543 N.E.2d 1004 (Ill. App. Ct. 1989): Provided the “plainly divided” responsibility principle; if control/responsibility is divided between defendant and another entity, res ipsa is generally unavailable.
• Imig v. Beck, 503 N.E.2d 324 (Ill. 1986) and Lynch v. Precision Mach. Shop, Ltd., 443 N.E.2d 569 (Ill. 1982): Used to clarify (i) who decides applicability of res ipsa and (ii) that, once applicable, res ipsa creates a permissive inference rather than a burden-shifting presumption. Lynch also served as a contrast case where one actor had “total supervision and control” of the mechanism—unlike CVS’s non-supervised vendor arrangement.
• Green v. Shah, No. 1-14-1512, 2015 WL 8773060 (Ill. App. Ct. Dec. 14, 2015): Noted the analytical “murk” that can arise in bench trials when the judge both determines res ipsa applicability and weighs the inference.
• Kolakowski v. Voris, 415 N.E.2d 397 (1980): Mentioned to note a surgery-related exception to the general “multiple possible negligent actors” limitation; deemed irrelevant here.
• Restatement (Third) of Torts: Phys. & Emot. Harm § 17 (2010): Used as persuasive authority reinforcing that when multiple entities could be responsible, “further information is typically needed” to identify a “probably” negligent party; absent that, res ipsa claims are properly rejected.

D. Evidence rulings and expert-testimony boundaries

• Davies v. Benbenek, 836 F.3d 887 (7th Cir. 2016): Provided the abuse-of-discretion standard for evidentiary rulings—reversal only when no reasonable judge could take the trial court’s view.
• Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mut. Ins. Co., 168 F.4th 483 (7th Cir. 2026): Applied to find waiver of an argument (Rule 26(e) supplementation) not raised in the district court.
• Good Shepherd Manor Found., Inc., v. City of Momence, 323 F.3d 557 (7th Cir. 2003): Supported the line between permissible “ultimate issue” testimony and impermissible legal conclusions that decide the case.

3.2 Legal Reasoning

A. The operative res ipsa question: “exclusive control” as “probable responsibility”

The court’s key move was factual-to-doctrinal: it treated the cooler shelves not as a static “store fixture” controlled like the government chair in Smith v. United States, but as part of a hybrid system in which independent vendors (i) stocked the large majority of products, (ii) cleaned their own spills, (iii) performed annual “resets” removing and reinstalling shelves (the only time shelves were moved), and (iv) did so without CVS oversight. That division of labor meant that “responsibility for” the shelf’s placement and stability was not predominantly CVS’s.

Importantly, the court did not require Khouri to prove exactly how the shelf was dislodged; it required him to produce enough proof that CVS was the probable negligent actor. The absence of evidence as to which entity stocked the shelf most recently, combined with vendors’ substantial interaction with shelves, prevented that probabilistic showing.

B. Bench trial posture did not change the doctrinal insufficiency

The panel acknowledged the bench-trial complication (the same judge decides res ipsa’s legal applicability and weighs the inference), but it avoided getting trapped in classification disputes over de novo versus clear-error review. It held that even assuming the district court’s res ipsa disposition was purely “legal,” Khouri failed to satisfy the threshold requirements to invoke the doctrine at all.

C. Interrogatory response: not an admission; low probative value

Khouri sought to admit CVS’s interrogatory answer stating no other persons/entities “at this time” with an “investigation continues” caveat. The Seventh Circuit endorsed the trial judge’s view: the response did not (i) admit CVS’s liability, (ii) foreclose third-party causation, or (iii) meaningfully illuminate who was responsible. If anything, “investigation continues” suggested uncertainty, not concession.

D. Rule 26(e) supplementation theory: waived on appeal

The opinion draws a sharp procedural line: even if a supplementation argument might have had force under Fed. R. Civ. P. 26(e), appellate courts do not entertain new theories not presented to the trial court. Citing Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mut. Ins. Co., the panel treated the issue as waived.

E. Expert limits: experience-based opinions allowed; legal conclusions excluded

The court upheld the tailored exclusion of portions of the Walgreens employee’s testimony. Two holdings mattered:

• Factfinding about “notice” was not clearly erroneous: the expert described both a visibly askew shelf (noticeable) and an improperly seated shelf that looks normal until it fails. Given Khouri’s own testimony that nothing seemed amiss, the district judge reasonably credited the “looks normal” scenario.
• Legal conclusions were properly excluded: under Fed. R. Evid. 704(a), experts may address ultimate issues, but Good Shepherd Manor Found., Inc., v. City of Momence supports excluding statements that effectively instruct the court on the legal result (e.g., “CVS caused it” or “CVS should have known” as a case-dispositive conclusion untethered from specialized methodology).

3.3 Impact

Although the opinion applies existing Illinois doctrine rather than announcing a new test, it meaningfully clarifies how federal courts in diversity will operationalize “exclusive control” in modern retail settings involving third-party vendors:

• Vendor-driven merchandising can defeat res ipsa: where vendors stock most inventory and perform the only shelf-removal/reinstallation events, plaintiffs face a steep challenge invoking res ipsa without evidence pointing to the store (as opposed to vendors) as the probable responsible actor.
• Discovery strategy becomes outcome-determinative: because res ipsa fails when the likely-negligent actor cannot be probabilistically identified, plaintiffs must use discovery to identify stocking logs, reset schedules, vendor contracts, and who last interacted with the instrumentality—otherwise the case can collapse at or after trial even if an accident “seems like negligence.”
• Interrogatory non-answers are not admissions by default: the decision discourages litigants from treating cautious discovery responses (“none at this time”) as substantive proof of responsibility.
• Experts must stay in their lane: retail-practice experts can describe mechanisms, practices, and risk visibility; they cannot simply assign legal blame in lieu of evidentiary proof on control/responsibility.

4. Complex Concepts Simplified

• Res ipsa loquitur (“the thing speaks for itself”): A doctrine allowing negligence to be inferred from the nature of an accident when direct proof of the specific negligent act is unavailable.
• “Exclusive control” (Illinois meaning): Not literal exclusivity. It asks whether the defendant is the probable responsible party for the apparent negligent cause. If a third party is just as likely responsible, res ipsa generally does not apply.
• Permissive inference vs. presumption: Res ipsa creates a permission for the factfinder to infer negligence; it does not force that conclusion and does not shift the ultimate burden of proof to the defendant (Imig v. Beck).
• Clear error (bench trial): A highly deferential review of factual findings; appellate courts do not reweigh evidence or credibility unless the finding is plainly wrong.
• Abuse of discretion (evidence): A trial judge’s evidentiary ruling stands unless no reasonable judge could have made it (Davies v. Benbenek).
• Waiver on appeal: Arguments not made in the trial court are typically forfeited/waived and will not be considered later (Crothersville Lighthouse Tabernacle Church, Inc. v. Church Mut. Ins. Co.).
• Expert “ultimate issue” vs. “legal conclusion”: An expert can explain technical matters that bear on an ultimate issue, but cannot simply declare the legal result (e.g., “the defendant was negligent”) (Good Shepherd Manor Found., Inc., v. City of Momence).

5. Conclusion

Khouri v. Highland Park CVS, LLC reinforces that Illinois res ipsa loquitur is fundamentally a doctrine of probability of responsibility, not mere proximity to the accident. When a retail fixture’s condition plausibly results from actions of unsupervised third-party vendors who substantially stock, service, and periodically reinstall the relevant components, a plaintiff cannot rely on res ipsa without evidence that makes the store more likely than not the responsible actor.

The opinion also underscores practical litigation lessons: cautious discovery responses are not admissions; failure to raise supplementation disputes in the district court risks waiver; and experience-based experts may educate the court about mechanisms and practices but cannot substitute legal conclusions for proof.