Restatement of the Law, Second, Torts

Copyright (c) 1965, The American Law Institute Proof of Negligence and Functions of Court and Jury

328D Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff. (2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. (3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. COMMENTS & ILLUSTRATIONS: Comment: a. The principle stated in this Section is commonly given the name of res ipsa loquitur. The Latin phrase, which means nothing more than "the thing speaks for itself," originated in a causal word let fall by Baron Pollock in the course of argument with counsel in Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (1863), where a barrel of flour rolled out of the window of the defendant's warehouse and fell on a passing pedestrian. In itself, the phrase has no more importance or virtue than its English equivalent, and its use has from time to time been criticized as adding unnecessary obscurity to a relatively simple problem. In its inception the principle of res ipsa loquitur was merely a rule of evidence, permitting the jury to draw from the occurrence of an unusual event the conclusion that it was the defendant's fault. Shortly after its origin, however, it became confused, in cases of injuries to passengers at the hands of carriers, with the older rule which placed the burden of proof upon the carrier to show that its negligence had not caused the injury. (See 328 A, Comment b.) This confusion resulted in a great deal of disagreement among the courts as to the application of the principle and its procedural effect. To some extent this disagreement still continues. The rule stated in this Section is that upon which the great majority of the American courts are now agreed. b. Circumstantial evidence. Negligence and causation, like other facts, may of course be proved by circumstantial evidence. Without resort to Latin the jury may be permitted to infer, when a runaway horse is found in the street, that its owner has been negligent in looking after it; or when a driver runs down a visible pedestrian, that he has failed to keep a proper lookout. When the Latin phrase is used in such cases, nothing is added. A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relation to it.

Some courts occasionally have applied "res ipsa loquitur," against certain defendants, as a rule of policy which goes beyond the probative effect of circumstantial evidence, and requires the defendant to explain the event or be liable. This has been true particularly in actions by passengers against carriers, where it is undoubtedly a survival of the older common law rule placing the burden of proof upon the defendant, still followed by some courts. (See 328 A, Comment b.) In such cases "res ipsa loquitur" often is given a greater procedural effect, either as requiring the defendant to sustain the burden of proof or as creating a presumption of negligence rather than a mere procedural inference. In general, such decisions have tended to be confined to defendants who have undertaken a special responsibility toward the plaintiff, as in the case of the carrier and the passenger. A few courts consistently define "res ipsa loquitur" as limited to such situations, and as having the greater procedural effect. Such courts usually have been compelled to recognize, under another name, the principle of circumstantial evidence stated in this Section.