The Great Change: Turning Cathy into a Lawyer

The recent topic in Torts class has been res ipsa loquitur, which literally means "the thing speaks for itself." The gist of this legal notion is that a harm's occurrence is itself evidence that some sort of negligent behavior must have also occurred to have allowed the harm to happen.

The reason to allow this type of claim in a tort action is because some plaintiffs might know there has been an injury but not also have sufficient evidence at the outset to submit to a court enough evidence to substantiate their claim of negligence when seeking redress for that injury. Such information might become available later in the trial, but the claim might get dismissed for lack of evidence before that time. So res ipsa loquitur allows the court to assume proof of negligence so that legitimate claims of tortious injuries will be able to proceed to trial.

The logic of this was more apparent in a case we read, Byrne v. Boadle. 159 Eng. Rep. 299 (Ex. 1863). The plaintiff was passing in front of the defendant's premises when a barrel of flour fell on him, causing injury. The plaintiff knew that the injury was caused by the barrel, but he didn't necessarily know the details of the specific negligent behavior of the defendant that presumably had transpired in order to permit this accident to have happened. The court reasoned that barrels do not fall on people without some negligence having occurred relating to their possession (e.g., faulty storage or transportation). So the court agreed that the plummeting of the barrel could constitute evidence of the negligence itself, lest the defendant be able to explain some other circumstances which caused its falling without there having been any negligence on his part.

Another case we read, however, applied res ipsa loquitur in a scope beyond the previous example. In Colmenares Vivas v. Sun Alliance Insurance Co. [807 F.2d 1102 (1st Cir. 1986)] the plaintiffs were injured when an escalator malfunctioned. The court allowed the evidence of the malfunction to be evidence of the negligence, but I am inclined to agree with the dissent where Judge Torruella wrote:

"...solely because the handrail stopped and [plaintiff] fell, without further evidence as to why or how the handrail malfunctioned, does not give rise to an inference of negligence by [defendant]...

"The malfunctioning of an escalator presents an even stronger argument against the raising of an inference of negligence without additional proof as to the cause of the malfunction. Although a court can take notice that an escalator is a complicated piece of machinery, it has no basis of common knowledge for inferring that its malfunction is the result of the [defendant's] negligence..." [emphasis original.]

I think the dissent's warning on not to assume negligence as the cause of the malfunction should be well taken, particularly with regards to the workings of an escalator where any number of complex inner workings could fail for any number of reasons. But I think a similar reluctance to accept such an inference could apply to the case of the falling flour or something else similarly mundane.

Barring reckless and obviously dangerous behavior, an accident victim will become injured only due to unfortunate luck. This is not to say that negligence can't play an operative role in the injury, but negligence could just as easily cause a victimless accident as it could an injury. The flour barrel could have fallen safely to the ground, injuring no one on its way. The haplessness of the plaintiff to have been injured is grievous and deserving of pursuing a remedy. But to presume an entitlement to the remedy I think goes too far.

Because what if the barrel's fall was entirely due to an accident in the truest sense? The court may not be able to conceive of such a possibility where its cause could not have been negligently caused by mortal man, but this inability could be due more to the limits of the court's imagination or experience than a limit to the physical laws of the universe. A shifting of soil and the settling of the building, otherwise undetected, or the fault of another party unknown to either plaintiff or defendant could just as easily been responsible for the injury. At the time of the injury only the plaintiff bore the burden of their unlucky timing to have been underneath the barrel as it fell. But the res ipsa loquitur doctrine allows the plaintiff to use the law as a lever to shift the burden of the misfortune onto the defendant. Granted the defendant may have the opportunity to craft a defense, but if the cause of the accident was due to some force of circumstance unknowable to the plaintiff, it may also be unknowable to the defendant. Yet unless the defendant can somehow come to know it, he will be liable for the damages. Thus the number of otherwise innocent yet hapless victims doubles from one to two.

Perhaps the flour example appears facetious in its believability. The court scratched its figurative head and could not think of any opportunity for the forces of nature to have conspired in such a way to make the barrel fall without any negligence on the defendant's part. If all the examples of successful use of res ipsa loquitur applied to similar situations where only the basic laws of physics needed to be overcome in order to trigger the accident then perhaps I would have less quarrel with the doctrine. But for the escalator example, more than mere gravity was at the root of the problem. Assigning the burden of proof to the defendant to explain the actual cause because of the presumption that he *must* have been negligent seems to take far too much for granted to be fair to the interests of the defendant. Even if the presumptions are disputable, the defendant should not have to do it. The stakes are too high because failure of him to do so adds him to the tally of victim, whereas for a plaintiff to fail to prove the negligence even in the face of there actually being some, while unfortunate, leaves the number of victims the same as happenstance had originally created.