9, A Phrasein L,atin:Res Ipsa Loquitur

of finding out. Yet the likely explanation

of the
hgence. In such cases, the defendant
should not be
Simply by showing that it
no more
about the
than the plaintiff does
cause Of hid
The
examples should help
t
you

to

understand
assiststhe plaintiff in getting to the
jury in those ow thi
cases.

Examples
Victims of Circumstance
l. In which ofthe follomng cases do
you think the
plaintiff
could
a. Lindsey's front
blows out while he
is driving
b. LaGuardiais injured while making
a delivery to
Acme
Company's warehouse. He was raising
a rollin
when the door stuck in the metal track
and
He offers
of multiple hammer bounced backon
distortion in the shape of the track to show marks on the track
that Acmehad
c. Young. a three-year-old toddler, comes home
from daycare.Through.
out the evening, he complains of a sore arm.
His parentsfinallytake
to the emergency room, where an x-ray reveals
that hisarmisbrokQ
The parents sue the day care center for negligence.
d. Brown, a five-month-old baby, comes home from daycare.
Through.
out the evening she shows obvious discomfort on her leftside.
Her
parents take her to the emergency room, where x-raysrevealthathe
left arm is broken. The parents sue the day care centerfornegligence
e . Flynn is walking past a high-rise hotel when a beer mugfallsonh
head from one of the balconies above. He sues the hotelfor
negligence.
f. While entering an interstate highway, Daley is injuredwhenastray
frontofhun.
Volkswagen engine suddenly appears in the roadwayin
tobe
Volkswagen
ailing
an
of
sign
no
There
is
crash.
causing him to
undera policy
carrier,
insurance
his
found in the area. Daley sues
injuries
prousion allomng recovery from the insurer for
propanetank,because
a
into
backs
g. White is injured when a large truck
hit the tank
he
that
claims
trucker,
Lindsey.
an
far. Wagner
too
back
him
Wagner, another trucker, waved
moment, presumably
the truck jumped suddenly at the last brake. Whitesues
the
Lndsey hit the accelerator instead of
and invokes res ipsa loquitur.
174

g. A

Phase

in Latin: Res Ipsa Loquitur

Probable Negligence
possibly
consideragatn Example lc above, in which Young, a three-year-old
ddler. came home from day care ssth a broken arm. Suppose that
before the court is the evQence of Young's injury.
theonlyeudence
supposefurther that the judge recognizes that there is a good deal of
uncertaintyabout the more likely cause of the accident. He believes that
center may have been Involved, but doubts
negligenceof the day care

likelycause. Perhaps he views negligence as a 40 percent

thatIt was the more

likelihood,and an accident resulting from the toddler's general exuberthe judge direct a verdict for the day
a 60 percent likelihood. Should
go
to
the jury?
the case to
carecenter.or allow

Foundation
firmingup the
makesup a yummy salad for lunch. He throws in some lettuce, a
; A110to
mushrooms, and some sliced turkey.
tomato.a can of artichokes, some
Natural Russian Salad Dressing over the
Thenhe pours Newton's
emopng the salad, Alioto bites into a piece of glass and breaks
top \Vh11e
tcoth. He sues

poses a problem here?

a Whichof the foundation facts
h Howmight Ahoto strengthen the argument for applying res ipsa
loquiturto the case?

4 Ulnerundergoesleg surgery by Dr. Eastwood to correct an arterial

problemIn h1Sthigh. After the operation, he notices that he has decreased
alongthe left side of the leg, which gets worse over the ensuing
sensation
aeeks.He sues Eastwood for negligence.

foundationfact ruses problems in applying res ipsa loquitur to

this case.'

b Inadditionto the basic facts described above, Ulner presents a medical

expert,who testifies that reduced sensation "does not ordinarily

c-cur"as a result of the type of surgery Ulner had, if ordinary care
wasexercised.Should Ulner's case go to the jury on a res ipsa loquitur
theory ?

c Assume
that Ulner's expert testifies that nerve damage of the type
hesufferedwould not happen unless the surgeon was negligent.
Dr.Eastwoodthen offers an expert who testifies that such loss of
sensationmay result from a number of causes, including the
underlying
medical problem, poor post surgical nursing care,
unavoidable
surgical abrasion of the nerve, or negligence. Given

thecontradictory
expert testimony as to the likelihood of negligence.
shouldthe judge allow the case to go to the jury on a res
ipsatheory'

thatafter Ulner's expert testifies that the damage would not

&anly occur Without
negligence, Dr. Eastwood takes the stand.
175

9. A Phrase in Latin: Res Ipso Loquitur

He testifies that the surgery was unremarkable.

standard procxdure,and that he definitely did chat he
not touch
pinch any of the surrounding nerves. At
close of
he moves for a directed verdict. How should the
judge rule?
e. Assume instead that Dr. Eastwood takes the stand
and
dunng the surgery an artery in
leg began
due to an unanticipated weakness in the artery wall.
To

life threatening loss of blood, Eastwood was forced

to
artery, which was directly in contact With the major
nerve in the
left
Side of the leg. This procedure risks datuage to the
nerve.
but
unavoidable when such surgical conM)lications arise.
This
is confirmed by the surgical notes and by the assisting evidence
physi(iaji
After ofTermg this evidence (which is not contradicted
by
tiff), DrsEastwood moves for a directed verdict. Should the plain.
it be granted?

Not for Attribution

S. Should the court apply res ipsa loquitur in the following cases?

a. Fexnstem rents a dry cleaning shop from Bradley. The

shopjs
destroyed by fire in the middle of the night, Investigationindicates
that the fire began near or along the wall between the officeandthe
cleaning area, but there is no explanation as to the cause. Bradleysues

Feinstein for negligently burning the shop.

b. Bradley, a guest at the Fontainbleau hotel, leaves his suite for dinner

A half-hour later there is a fire in the room. The evidence indicatesthat

the fire started in a sofa in the sitting room of the suite. The hotelsues
Bradley for negligence.

6. Atkins's house is destroyed in a fire following an explosion in a dosetin

the cellar. He offers evidence that two weeks before the fire thegas
company had installed a new gas line to his water heater. locatedin the

closet. He argues that this evidence suffices to allow the jury to findneg

ligence based on res ipsa loquitur.

a. Would this evidence sumce to get to the jury on a res ipsatheory'
case
b. After Atkins produces this evidence, the gas company puts on its
closetand
Its evidence indicates that Atkins had taken the door off the

theexplostored various combustible materials in the closet before thefire.

before
sion. that no one had smelled gas durtng the two weeks
beforethe
hour
an
heater
that Atkins had been working around the
outsideatthe
hour
an
miles
80
fire, and that the wind was blowing at
loqujtur
a res ipsa
time of the explosion. Should the case go the jury on
theory?

of a

third floor
of
7. Young is hit by a piece of wood that falls from the open
employees

construction site. At the time, Koch and Alioto, two

176

9. A Phrasein Latin:

Res Ipsa Loquitur

WagnerConstruction Company, the framing subcontractor, were the

only workers on that floor.

a. Unableto discover exactly what caused the board to fall, Young sues
Kochand Alioto. Can he invoke res ipsa?
b. Younghas an easy alternative here; what is it?

fudd Ipsa Loquitur

8. Assumethat Judge Fudd tries the case described in Example 5b, in which

the hotel fire started in a couch in the defendant's room. Judge Fudd,
afterbrushing up on his res ipsa learning, gives the following instruction
to the jury:
If you find that the fire in this case was not likely to have happened in the
absence of negligence, and that the negligence, if there was negligence, was
most likely that of the defendant, then these facts give rise to an inference of

negligenceon the part of the defendant.

Whatis the problem with the Honorable Fudd's instruction?

9 FarmerJones decides to take a break from the spring plowing. He turns
offthe ignitionand gets off his new tractor. Suddenly, the tractor unaccountablystarts up with Jones standing next to it. Jones, perhaps illadvisedly,jumps for the driver's seat to stop it, is thrown off and injured.
HesuesInternational Tractor Company. the manufacturer, alleging negligencein causing his injuries. At trial, he proves the above facts, and
arguesthat he should get to the jury based on res ipsa loquitur.
Thedefendant asksJudge Fudd to give the following jury instruction:
No inferenceof negligence by the defendant is permitted, unless the plaintiffhasshown that the iryuryausmg occurrence was not due to any contnbutionor voluntary activity on the plaintiff's part.

ShouldJudge Fudd give the instruction?

Explanations

Victimsof Circumstance
l. a. Asthe introduction states, res ipsa loquitur only applies where the
natureof the accident indicates that it would not ordinarily happen
withoutnegligence. Most courts would probably hold that a tire blowout does not satisfy this requirement. Tires can blow out from a
numberof causes, including over- or underinflation, glass or other
sharpobjectsin the road, excessive wear, a Chicago-sized pot hole,
andprobablyothers as well. Of course, it could result from a defect
in the tire, but given all the other potential causes, this accident is
probablynot the type that "ordinarily does not happen without
negligence."

9. A Phrasein Latin: Res Jpsa

b.

Loquitur

really a res ipsa case.

Simply
in the track indicate
that
one had tned to fix lt. From the track had been
this a jury
been poorly done, and that
could
the distortion
in the
In a res ipsa case. the
plaintiffusually
particular cause of the accident.
doesn't
have
Rather,
he tries to
general circumstances of the
accident
happened If the responslble party suggest that it
had been careful
argues, "Hey. 1 can't explatn
just what
happened
sonable to Infer that the defendant
must have done here, but
this accident wouldn't have happenee

back on such general proof,

he has

stanual evidence of the specific act

of negligence
that
c. surely any parent can testify to the
that many toddlers
enthusiastic than careful. They try new things,
fall downa lot,
into things. It seems quite credible that

an active three-year
Gd would
fall offa smng, tnp, or get hit hard enough to break
an arm,evenIfthe
day care personnel were exercising due care in
supervisinghim.Thus
It is at least doubtful that a jury could infer negligence
of theday
aar
center from the mere

fact of this accident. See,

Wardv,Moc

CalvaryLutheranChurch,873 P.2d 688 (Ariz. App. 1994), which

refused

to apply res ipsa on smular facts.

d. Although three-year-olds get around very well and consequently

take
some pretty hard knocks, a five-month-old can hardly navigateatallIt
seems improbable that Younger could manage to break herarmallb)
herself; it IS much more likely that someone dropped her. or lefther
unattended on a changing table. This case seems a muchstronger

candidate for apphcation of res ipsa loquitur.

e. This accidentis not likely to happen without someone'snegligence.
The problem is in attributing the negligence to the hotel owner.It
mugoff
quite likely that a guest, rather than an employee, knocked the

care
a balconyruling. While hotels have a duty to exercisedue
guards
controlling the conduct of guests, the hotel cannot haveThus,res

every room to interdict every careless act of its guests. thatthe

show
Ipsa WIIJprobably fail here because it is impossible to
defendant.
negligence. if there was any, was attributable to the
in the middle/
f This
good res ipsa case. When an engine is found strongly
an expressway. it probably didn't walk there. The fcts Clearly,that
gest that the engine must have fallen from a truck.carein secure
shouldn't happen ifthe hauler has exercised reasonable

ing the load.

178

Res Ipsa
in LJtin:

Loquitur

the neghgence
foundation fact
ofthe second
Here, Daley IS relieved of the problem posed by
cularperson?
ipsa requirement. Under the policy prmslon, the
res
second
lus accident was caused by the negligence
liableas long as
Here the facts prmMdereasonable proof
unidentifiedmotorist.

pattern on an exam, a number of students said

I gavethis fact
invoke res Ipsa, since he is unable to tell which
Whiteshould
the collision. However,

this IS not a res

negligence caused
defendant's
the plaintiff must show that the
First.to invoke res Ipsa

case
if any, was likely that of a parucular defendant. Here,
negligence,
and White simply isn't sure which one was at fault.
thereare two,
not allow W"hlteto Simply pomt the finger at multiple
ResIpsadoes
"Hey, someone did it, so I can sue them

all,
and argue,
defendants
negligent, and recover " White still bears
provethat somebody was
the probable negligence to a parucular
the burden of attributing
person.

In addition, this IS not really an unexplained accident. It ISclear

whathappened.The truck backed Into the tank. The only problem IS
theconfliclIn the evidence as to which of two negligent acts caused it.
That'sSimplya quesuon of who IStelling the truth. Suppose, in Byrnev.
Bdjt, that Boadle had testified that a delivery person for another
companyhad been in the shop and dropped the barrel, but the deliverypersontesufied that Boadle had dropped it. On these facts, their
tordshlpswould not have thrown any legal Latin at the problem. They
wouldsimplyhave left it to the jury to decide who was telling the
truth.

PossiblyProbable Negligence
2.Thisexampleraisesa tough but important quesuon- Here, it is a debatablepropositionwhether the accident was more probably the result of
negligenceor pure accident. The judge puts the probabilities at
40 percentnegligence/60 percent pure accident, but recognizes that
others(in particular,the jury) might disagree. Should he let the jury
decide,or direct a verdict for the defendant on the ground that one of the
foundauonfacts (that the accident "ordinarily would not have happened
Without
negligence")has not been established?
Presumably.if the jury could reasonably conclude that the accident
ordinarilywould not happen without negligence." they should be
allowedto decide. They are the factfinders, so presumably they decide
thefcundatnrj
factsas well as the ultimate issue of negligence. If they agree
thejudge that negligence is not the more probable explanauon, they
shouldfind for the defendant. But if they conclude that the accident does
179

9. A Phrasein Latin: Res Ipsa Loquitur

bespeak negligence (and that the negligence is likely

attributable
defendant) they would be entitled, under res ipsa, to make
an
Put another way. the judge's role is not to make findings
hitnselfthat
the foundation facts are established, but rather to determine
whether
the
jury reasonably could conclude that those facts are proved.If there
evidence from which the jury could find that the plaintiffhasestabhshed
the foundation facts, they must be given the opportumty to doso,and(if

they do) to decide whether to make the further inferencethatthe

defendant was negligent.

firming up the foundation

3, a. It seems very likely that glass would not have ended up in
salad unless someone was negligent. The problem in thecase,of
course, is to decide whose negligence it was. The glasscouldhave
even
come from the mushrooms, the lettuce. the artichokes,perhaps
alsohave
the sliced turkey, as well as from the salad dressing. It may

Thus.the
fallen into the salad from a shelf or the kitchen counter.
Is

the negligence
circumstances do not of themselves demonstrate that
attributable to Newton s.
New-

foundation against
b. Alioto may be able to shore up his res ipsa
glass.Hemaybe

the
ton's by eliminating the other possible sources of
washed,andcutup
drained,
lettuce,
the
washed
he
that
testify
to
able
it into thesalad.
cutting
before
mushroom
each
the artichokes, rubbed
to
may also be able
He
board.
cutting
and sliced the turkey on a clean
the salad.Depending
making
before
counter
the
tesufy that he washed
to eliminatethe
jury
the
lead
could
on the particulars, such testimony
leavingNewglass,
the
of
other items in Alioto's lunch as the source
ton's the likely culprit.
to eliminate

testimony
It is quite common for plaintiffs to offer
as to satisfy
so
themselves,
defendant
the negligence of others, including
to the
attributable
requirement that the negligence be
plaintiff will try
the
In an exploding bottle case, for example,
orderto pro
in
show careful handling by the retailer and himself, In a
that the negligence was likely that of the bottler. the weather

the
that
airplane case, the plaintiff will offer testimony weather, cawsed
clear to bolster the inference that negligence, not
ble
plane to crash.
attributa
likely
fled
4. a. If there was negligence at all in this case, it was very this sidee
that
conJude.
to Dr. Eastwood. However, it is not at all clear
uld
thigh
jury co
after
results from negligence. It is very doubtful that a

sensation
from their general knowledge, that decreased
the jury
Thus,
surgeon.
surgery bespeaksnegligence of the

180

phrase

in

Res Ipsa
Latin:

Loquitur

mere fact of
the
on
based

the injury, to determine that the

inference is established.
aPO on for the res ipsa
not usually result when
that nerve damage does
expert
had is carefully performed. However, it does
b
Ulner
ofsurgery

side effect doesn't usually occur, that

this
because
follow,just probablyresults from negligence. There are many
it
whenit occurs
occasionally happen despite the exercise of
that
surgery
Sideeffectsof negligence should not be inferred just because such
duecare.Surely, For example, surgical patients rarely get infections
rare.
sideeffectsare
but this does not mean that, if a patient does get
fromcarefulsurgery,

was probably negligent. In a small percentage of

infected,the surgeon
despite all reasonable precautions.
cases,it justhappens anyway,
"the type of injury that
Manycourts state that res ipsa applies to
would not occur if reasonable care had been used." Wickv.
ordinarily
485 N.W.2d 645, 649 (Iowa 1992). However, this language
Henderson,
It is one thing to say that the type of accident does not
ismisleading.
happenwhen the actor is careful. It is another to say that,
ordinanly
doesoccur,it is more likely than not that negligence was
theaccident
when
thecause.Tireblowouts do not ordinarily happen if car owners are
but it does not follow that when tires doblow out, it is probcareful,
ablytheresultof negligence. People do not ordinarily fall down on the
sidewalk,
but when they do, it does not follow that negligence is the
likely cause.

Abetterstatement of this requirement is that the accident "would

notordinarilyhappen without negligence." (Note that Ulner's expert
didnot testifyto that.) Res ipsa requires that the accident not only be

unusual,
but that it be unlikely to happen unless someone failed to
exercise
due care. If Ulner's expert testified that nerve damage does

notoccurin this type of surgery

unlessthesurgeonwas careless,his testimony

wouldprovidean evidentiary
basis for the jury to conclude that his
injuryprobablyresulted from
negligence. On that testimony, Ulner
wouldbe allowed to reach
the jury on a res ipsa theory.
Here,Ulner'sexpert has
provided testimony that would support the
first"foundation fact."
However, Dr. Eastwood has offered expert
testimonythat contradicts
jury,as the factfinders, that testimony. Presumably, it is for the
to resolve this conflict in the evidence. If
theybelieve
Ulner's expert, they may conclude that injuries of
this
typemostlikely
result from negligence. They could then make the
er inferencethat
this one in fact did result from Dr. Eastwood's
negligence.Compare
Example 2. If they are convinced by Eastwood's
expert,they will
conclude that negligence is not the most likely explanation,and
find for the defendant.
d.
motion should be denied. Ulner's
evidence suggests that
type of outcome
likely results from negligence of the surgeon.
181

9. A Phrasein Latin: Res Ipsa Loquitur

Eastwood then testifies that he did
not

make the
would likely explain Ulner's complications.
If the
wood's testimony, they will presumably
refuse jury
permitted by the res ipsa loquitur doctrine.
but they are also free to disbelieve Eastwood'sTheyarefr
testimony
res ipsa inference based on the evidence
that suchresul
result from negligence of the surgeon, and
the further
injury did in fact occur. on this state ofthe
fact
evidence,
e . The res jpsa loquitur doctrine allows a jury to
concludethatan
plained accident more than likely happened

due to
here, the defendant has offered an uncontradicted,
fully
explanation that the injury occurred without negligence.
is some basis to conclude that the witnesses are lying,
this
no longer unexplained, and there is no need for thejuryto
the probabilities concerning an unexplained occurrence.Thus,
would no longer have a role, and the judge would likely
verdjct for the defendant.
If there were some basis in the evidence for the juryto
Eastwood's testimony concerning the ruptured artery, they
entitled to do so. If they did disbelieve it, and the properres
foundauon had been laid, they would be free to infer thatnegligen.r
caused the problem.

Not for Attribution

to gotothe
S. a. Most courts would probably refuse to allow this case
thatther
jury on the basis of res ipsa. Ordinary experience suggests

do notinvolve
are a number of possible causes for this fire which customer
a
negligence of the tenant, including electrical problems, The
problems.
smoldenng cigarette, vandalism, or mechanical
spilkd

Shecouldhave
may be attributable to the operator's negligence:
a pressingmachine
cleaning fluids, left oily rags near the wall, or left
overnightandcannN
occurs
fire
the
where
be
on. But it seems doubtful,
reasonably

it can
be directly tied to the cleaning machines, that
cause.
inferred that one of these is the more likely better
b. Although this is another fire case, it is a much indicates
evidence
s
someone
application of res ipsa loquitur. Here, the
absent
fires
fire started in a sofa, not a usual place for
Bradleyleft
after
negligence. In addition, it started shortly negligence
App
(Tenn
room, which supports the inference that, if
S.W.2d 13
fire, it was his. See Olsuangerv. Funk, 470
similar case).
a
in
loquitur
1970) (approving use of res ipsa

182

Latin:
phrasein

Res

Loquitur

case. further evidence may strengthen the inferene of

In
If' he locked the room, for example, tins tend'
Bradley'snegligence. as an alternative explanation, Jf Bradley i' a
vandajjsjli
to eliminate
greatly strengthen the inference that he had
smoker,that would
the fire,

enough evidence to go to the jury on ret

Atkinshasprobably
shows that t)je accident happened %hortlyafter the
ipso.HISevidence
the heater. that the fire resulted frotn an
gascotnpanyworked on
explosjon,and that the explosion took place jn the area where the
gascornpanyhad done the work. A reasonable jury could Infer from
thesefactsthat the accident probably resulted frorn a gas leak, and that
theleakwas probably caused by faulty work in installing the gas line
Atkins'scase IShardly ironclad. but it supports a reasonable inference
of negligence.

course, the gas company was not "In control" of the heater or
thegas linesat the time of the explosion. But under the Restatement
formulationof res ipsa thjs ISnot necessary. Atkins must 'sunply show

thatthe negligenceis probably attributable to the gas cornpany,

b. Sometimesres ipsa seems to leave defendants at the mercy of the Jury
aslongas some Inference of negligence can be made. But
example.
ba.sedon an actual case. Nutung v. NorthernEnergy,Inc., 874 P 2d 482

(Colo. App. 1994), illustrates that defendants. through aggressive

discovery.are often able to muster substantial evidence to undermine
the foundation facts. In Nutting.the plaintiffs had to admit that they had
been working around the heater, weakening the inference that the
negligence,if any, was the gas company's. In addition. the weather
recordssuggested yet another explanauon for the fire that the force

of 80-nule-per-hour winds had caused a downdraft, blowing the

burnerflame outward, and igniting the combusuble materials stored
In the closet. On this state of the evidence, the court held that the
plaintiffshad not rnade a case for one of the res Ipsa foundation facts:
that the negligence, if any. was likely attributable to the defendantConsequently,the court refused to give the jury a res ipsa instruction.

7. a. Thiscase resembles
Byrnev. Boodle,the flour barrel case that gave rise to
the res ipsa doctrine. As in Byrne,it seems fairly
clear that a jury could

find, based on their own experience, that this accident would

not
ordinarilyhappen without negligence. Someone must have left the
board too near the edge of the
building, or dropped it in the course of
the work, or something.

The problem is the other foundation requirement, attributing the

negligenceto a particular defendant. Granted, it is probably attnbutableto oneofthedefendants,
but it is not clear wluch one. Even where the
plaintiffrelies on the general
inference of negligence permitted by res
183