Torts Class Notes 10/14/03


Factors to consider for negligence per se


·        Does a common law duty prohibit this conduct?

·        Does a statute clearly define the prohibited conduct?

·        Does application of negligence per se yield strict liability?

·        Will liability result in financial ruin that is disproportionate to the seriousness of the defendant’s conduct?

·        Did the injury result directly or indirectly from violation of the statute?


It’s difficult to interpret statutes sometimes.  If you encounter a vague statute, you must make arguments or resort to the legislative history to find out what the statute meant.


Juries and negligence per se


What weight will adoption of the statute as a standard of care have in this jurisdiction?


·        Unexcused violation of statute is negligence per se

·        Unexcused violation of statute creates a rebuttable presumption of negligence

·        Unexcused violation of statute provides evidence of negligence


Three factors for res ipsa loquitur


1.     The accident does not happen in the absence of negligence.

2.     The defendant had exclusive control of the instrumentality that caused the injury.

3.     The plaintiff has done nothing to contribute to his or her injuries.


Byrne v. Boadle


Byrne got beaned on the boodle by Boadle’s barrel.  Byrne could not establish whose fault it was, so under the old rule there’s no way he could recover from anybody for negligence.  But since, heck, it’s a barrel coming out of the sky, we figure that somebody must be negligent.


The defendant has superior knowledge.  They know what went on, and it’s hard for the plaintiff to find out what went on.


Is it fair to shift the burden of proof to the defendant?  Can we justify shifting the burden of proof even when the defendant does not have superior knowledge?  What exceptions should we establish to the res ipsa loquitur rule?  Why should the defendant have to prove that they didn’t do it?  What if neither the defendant nor the plaintiff has any explanation for what happened?  That’s not to say that the result doesn’t seem unreasonable here.


Res ipsa loquitur is intended to cure the unfairness of the defendant’s superior knowledge.  However, it’s a double-edged sword and it could result in actually creating unfairness.


Note that all three of the above elements must be present in order to use a res ipsa loquitur theory at trial.


McDougald v. Perry


This is a “wayward wheel” case.  A tractor-trailer’s spare tire came loose and hit McDougald’s windshield.  The trial court applied res ipsa loquitur, and the defendant appealed.  The appeals court ruled that the trial court was right.


Did the defendant have exclusive control of the instrumentality?  The defendant was responsible for the maintenance of the housing for the spare tire.  The general view is that spare tires don’t fly off of cars unless someone has been negligent.  There is an always an issue when there is a product that isn’t working properly: you can always point to the manufacturer and claim that the manufacturer did not build it right.  The way to rebut this is to consider whether there have been previous problems with this product or whether this particular article is old and structural degraded.


For some reason, manufacturers’ responsibility doesn’t come up much in most res ipsa loquitur cases.


Was there a need for expert testimony in this case?  When do you need to have expert testimony in general?  As long is something is within the general knowledge of the population, there is no need for expert testimony.  This is similar to the rule in medical malpractice.


Cases that don’t need expert testimony include “wayward wheels”, falling objects, train derailments, boiler explosions and the escape of gas or water from gas or water mains.  These are things that the general public knows can only be caused by negligence even without expert testimony.


Exclusive control Larson v. St. Francis Hotel


The plaintiff wants a res ipsa loquitur instruction against the hotel.  Is the plaintiff successful?  The court said no.  Why?  The court said that the management does not have exclusive control of all the chairs in the hotel.  Rather, the people in the rooms you’re renting out have exclusive control over those chairs.


That doesn’t mean the hotel isn’t negligent, it just means that the plaintiff won’t get a res ipsa loquitur instruction.  If you were at Mardi Gras, for example, you might reasonably expect hotels to take extra precautions to adjust to the circumstances.  But res ipsa loquitur is not a good mechanism for suit if there is other evidence of fault.  In a case like Larson, maybe you can show that the hotel failed to take precautions that a reasonable person would take.


You usually get a res ipsa loquitur instruction on runaway cars.


Res ipsa loquitur is an unusual instruction to get.  Also, when you have multiple defendants, you almost never get res ipsa loquitur.  Ybarra is a slight exception.


Ybarra v. Spangard


This is a kind of outlier case, although some jurisdictions follow it.  The plaintiff went in to get his appendix removed.  When he came to, he had severe pain in his neck, shoulder, and arm.


What’s the problem with multiple defendants in a res ipsa loquitur case?  You can’t prove which particular person was negligent.  What other problem do you have?  You can’t prove which instrumentality caused the injury.  The plaintiff has no information at all.


These are the defenses:


·        There are lots of defendants.

·        There are lots of instrumentalities.

·        The control of the instrumentality that caused harm is uncertain.


Therefore, as a consequence of having many defendants, it is hard to prove the element of exclusive control.


Why is it fair to apply res ipsa loquitur?


Do the facts of Ybarra suggest a freak accident?  Not really.  It kind of seems like something really happened.


What is special about this plaintiff that makes us extra sympathetic?  He was unconscious!  This is a position any of us could be in.  This is a driving force behind applying res ipsa loquitur to multiple defendants.


What else makes this a good res ipsa loquitur case?  The defendants control all the facts (i.e. they have superior knowledge).


Compared to other res ipsa loquitur cases: if it’s fair to get res ipsa loquitur when you get hit in the head with a barrel, shouldn’t it be fair when your arm gets messed up in an operation?  There is a fairness consideration here.


What if you don’t apply res ipsa loquitur?  Would courts or legislatures do something about this situation?  Sure, you would probably get legislation, and it would probably be strict liability.  That may well not be desirable.


One more argument that Cole claims is rather weak is that this is a group and so vicarious liability should apply.


The real justification is that we feel that the defendants have superior knowledge and we want to use res ipsa loquitur to “smoke out” the defendants and make them testify.


This is a pretty unique situation.  With an unconscious plaintiff and a defendant in control of all the facts, that’s a justifiable reason to shift the burden of proof to the defendant.


Burden of proof – Sullivan v. Crabtree


The suit was brought by the parents of a guy who was killed in a truck accident.  Res ipsa loquitur is a theory of “last resort” in a sense.  The question of res ipsa loquitur goes to the jury.


There are three rules for res ipsa loquitur just like the three rules for negligence per se.


Ohio follows the “rebuttable presumption” rule for res ipsa loquitur.


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