§ 5.01  Overview [79-80]

 

The plaintiff has the burden to prove each element of a negligence cause of action by a preponderance of the evidence. If the plaintiff fails to carry this burden, the case must necessarily be decided for the defendant. It is incumbent upon the plaintiff to put on enough evidence so that a jury can find that more likely than not the defendant failed to act reasonably. The happening of an accident is never enough by itself to permit a jury to find that a defendant has behaved unreasonably.

 

§ 5.02  Kinds of Evidence [80-81]

 

There are two key forms of evidence that a plaintiff can use in attempting to establish negligence by the defendant: direct and circumstantial. Direct evidence is evidence that comes from personal knowledge or observation. Circumstantial evidence is proof that requires the drawing of an inference from other facts. So long as the jury can draw a reasonable inference (as opposed to speculate) the circumstantial evidence will be admitted.

 

§ 5.03 Slip and Fall Cases and the Role of Constructive Notice [81-82]

 

Where a plaintiff slips and falls on the defendant's property, the plaintiff must show more than the fact that she fell and was injured. Most courts require the plaintiff to show that the condition on which she slipped existed long enough so that the defendant should have discovered it and should have remedied it. Some jurisdictions permit the plaintiff to try to make a case without proof of actual or constructive notice on the part of the defendant. These courts recognize a “mode of operation” basis for liability by which the plaintiff bases the defendant's liability on the methods used by the defendant to run the business.

 

§ 5.04 Res Ipsa Loquitur [82-92]

 

Res ipsa loquitur, an important form of circumstantial evidence, may be relevant to a plaintiff's efforts to establish the defendant's unreasonable conduct. In most negligence cases, the plaintiff specifies what the defendant allegedly did unreasonably. Res ipsa loquitur is most important and has its greatest impact in cases where the plaintiff is unable to make specific allegations about what the defendant did wrong.

 

The conditions traditionally required for the application of res ipsa loquitur are: “an accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff.” In order for the plaintiff to have the benefit of res ipsa loquitur, she must convince the jury that each of these factors more likely than not exists.

 

            [A] Byrne v. Boadle

 

The case of Byrne v. Boadle [2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863)], in which the plaintiff was seriously injured when a barrel of flour fell on him, is credited with adding “res ipsa loquitur” to the legal lexicon.  In Byrne, neither the plaintiff nor any of the witnesses testified as to anything done by the defendant that could have led to the barrel falling. Yet the court allowed the case to proceed because of the nature of the harm-causing event and the defendant's relationship to it. Since Byrne, courts and commentators have refined the doctrine and its proof requirements.

           

            [B] Probably Negligence

 

A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible non-negligent causes defeat plaintiff's effort to invoke res ipsa loquitur. The key is that a reasonable jury must be able to find the likely cause was negligence.

           

            [C] Probably the Defendant

 

A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm.  Initially, courts interpreted the control element narrowly, requiring the plaintiff to that the defendant likely had “exclusive control” over the harm-causing instrumentality. This element has been liberalized and it is now enough for a plaintiff to get to a jury on res ipsa loquitur if she can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control.  Further, most jurisdictions no longer require the plaintiff to prove that the she did not contribute to her harm.

           

            [D] The Outer Reaches of Res Ipsa Loquitur )Ybarra v. Spangard [154 P.2d 687 (1944)]

 

In this controversial case, the California Supreme Court provided a very broad interpretation of res ipsa loquitur, permitting the plaintiff to proceed even when he could show neither who was the responsible party nor what was the harm-causing instrumentality. The court applied res ipsa loquitur as a means of “smoking out” evidence from the defendants, shifting to them the burden of proof. The facts of Ybarra create a compelling case for judicial creativity: an unconscious patient, probable negligence, an unwillingness on the part of anyone to come forward to claim responsibility perhaps due to a tradition of refusal to testify against other medical professionals, and solvent, well-insured defendants.  It is unlikely that the case will be extended much beyond its facts.

 

            [E] The Effect and Value of Res Ipsa Loquitur

 

In the majority of states, upon proof of res ipsa loquitur by the plaintiff, a jury may elect to infer that the defendant was unreasonable if it so chooses. With res ipsa loquitur, the case gets to a jury and the jury decides whether the defendant was more likely than not at fault. A defendant has not automatically lost on the issue of breach of duty once a jury finds the res ipsa loquitur elements have been proven. The defendant's evidence of her reasonable conduct may be persuasive enough for a jury to conclude that the defendant was probably not at fault.

 

            [F] The Role of the Defendant's Superior Knowledge

 

Although the defendant's superior knowledge is a compelling justification for the application of res ipsa loquitur, most courts and the Restatement do not require that the defendant have greater access to the facts than the plaintiff for the doctrine to apply. Indeed, most jurisdictions permit a plaintiff to attempt to prove the defendant's unreasonable conduct with evidence of specific wrongdoing as well as through the use of res ipsa loquitur.