RES IPSA LOQUITUR DE NOVO
John H. Crabb* and Kenneth F.Johannson**
I
INTRODUCTION
It has been said that the law of torts is tainted with a "besetting
sin" of turning propositions of fact into rules of law.' If the law of torts
does indeed do this-and does indeed thereby sin-such an activity
undoubtedly reaches its apogee in the torts "doctrine" of res ipsa
loquitur. Some eminent writers in the field of torts have turned a baleful
eye on res ipsa loquitur and seem to regard it as a sinful habit from
which the law of torts should be rescued. 2 At all events it is probably
susceptible to the abuse that befalls many catchy labels and handles
that are bandied about in legal jargon.
Although it has been a phenomenon of the Anglo-American legal
world for some time now, it has been a continual source of controversy
and confusion. Certainly a major part of the difficulty in dealing with res
ipsa loquitur stems from its character of being a mixture of substance and
procedure. Indeed, it appears that this strong taint of procedure caused3
the first Restatement of Torts to ignore or avoid the subject altogether.
And it has been in its procedural aspects that it has demonstrated its
most divergent treatment among the various states. While the large
majority of jurisdictions are said to give res ipsa loquitur the effect
of creating a permissible inference of negligence based on circumstantial
evidence, a dwindling minority deem that it creates a presumption of
negligence, and still fewer courts find that it shifts the burden of proof
* Associate Professor of Law, University of North Dakota; A.B., 1943, Uni-
versity of Michigan; LL.B., 1948, Harvard University; M.A., 1954, University
of Detroit.
** Member, Minnesota and North Dakota Bars; B.S.B.A., 1958, J.D., 1962,
University of North Dakota.
1 Williams, The Application of the Contributory Negligence Act to Liability
for Dangerous Premises, 13 CoNvEY.(n.s.) 411, 416 (1949), cited in Obcrst,
Torts, ANN. SURVEY AMi. L. 442 n.1 (1959).
2 Notably torts titans Seavey and Prosser. See notes 27 and 28 infra.
3
See the remarks of Dean Prosser in 1960 ALl PROCEEarNtos 209.
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to the defendant. 4 And Michigan and South Carolina state they have
formally rejected the concept altogether, but they in effect apply it under
4
other guises. a
It is to be noted that these major divergences all refer to the procedural effect that is to be given to res ipsa loquitur, rather than to
differences concerning the substantive bases upon which such procedural
consequences are to be predicated. It seems that greater consistency
is to be found in this substantive side of res ipsa loquitur, and that
courts usually have about the same type of factual situation in mind
when they are considering whether or not res ipsa loquitur is applicable.
This seems to be true even though they may phrase the formula in
various ways or may differ in their analysis of facts and application
of the formula to them. The common underlying theme is the happening of an event injuring the plaintiff, which by its nature is sufficient
to permit a jury to find the defendant liable.
It appears that the second Restatement will be bolder than the first,
and will grapple with this procedural and substantive tangle and undertake to state the doctrine. The language of the Tentative Draft for the
second Restatement of Torts of concern to this discussion is as follows:
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 the defendant when (a) The event 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." 5
This may be taken as the latest statement by a widely respected
authoritative source as to what res ipsa loquitur is. But the statement
leaves room for interpretation and does not promise to still controversy
and commentary. Res ipsa loquitur came to this present resting placeif that is indeed what it is-after undergoing some period of historical
development.
II
HISTORICAL DEVELOPMENT
One may speculate that the more up-and-coming of the ancient
Romans occasionally said "Res ipsa loquitur" to one another, thereby
4 Ibid.
4a Numerous cases in these two jurisdictions have so stated. See, e.g., Pattison
v. Coca-Cola Bottling Co., 333 Mich. 253, 52 N.W.2d 688 (1952); Shephard v.
United States Fid. & Guar. Co., 233 S.C. 536, 106 S.E.2d 381 (1958).
5RESTATEMENT (SECOND), TORTS § 328D(1) (Tent. Draft No. 5, 1960). On
the strictly procedural side, this section adopts the inference-of-negligence theory.
RES IPSA
adding wit and charm to many an otherwise dull conversation.! However, the phrase as it is significant to us is not an ancient maxim, but
arose only about a century ago, long after people were supposed to
have stopped speaking Latin unnecessarily. 6a Baron Pollock is generally
credited with having embellished the field of torts with this phrase in
1863 in the picturesque old case of Byrne v. Boadle.7 However, it had
appeared two and a half centuries earlier in the usury case of Roberts
v. Tremaynes where the court ruled a ury's verdict was not necessary to
establish the invalidity of an obviously usurious agreement because "res
ipsa loquitur."
And, even in the field of torts itself, the seed may be said to have been
strewn in 1806 in Christie v. Griggs.9 There, evidence that the plaintiff
was riding in the defendant's coach, that there was an accident, and that
the plaintiff was injured, was allowed as a rebuttable presumption of
negligence. After a prolonged gestation of some fifty-seven %ears, the
doctrine was born in Byrne v. Boadle. Baron Pollock seems to have suggested a name when he casually uttered this Latinism in his colloquy with
counsel, rather than in his opinion itself. In 1865 in the London Docks
Case, Chief Justice Erle formulated the much quoted statement that if
the thing is under the "management of the defendant or his servants and
the accident is such as in the ordinary course of things does not happen
if those who have the management use proper care, it affords reasonable
evidence, in the absence of explanation by the defendants, that the
accident arose from want of care." 10 The formal baptism of the infant as
res ipsa loquitur appears to have occurred one year later."'
Two later cases illustrate the direction the English courts pursued in
applying the doctrine. In one, a brick fell from a railway bridge and injured the plaintiff shortly after a train had passed. The court held that
6
However, it was used on weightier occasions. It is said that Cicero used it
unsuccessfully in defense of Milo in the Clodius murder trial and his adversary
used it to prove Milo's guilt. Hannigan, Res Ipsa Loquitur, 6 TErtp. L. Q. 376
(1932).
BaThe phrase did have some earlier currency in Anglo-American law, but in
fields other than procedure in negligence cases. See Hannigan, supra note 6,
at 377.
72 H.& C. 722, 159 Eng. Rep. 299 (Ex. 1863). In that case a barrel of flour
fell out of the defendant's building and on the plaintiff's head. What could be
more picturesque than that?
8
Cro. Jac. 507, 79 Eng. Rep. 433 (1614). This case was cited by the United
States Supreme Court as authority for certain propositions relating to the law
of usury in Bank of the United States v. Waggener, 34 U.S.(9 Pet.) 392, 399-400
(1935).
92 Camp. 79, 170 Eng. Rep. 1088 (Nisi Prius 1806).
10 Scott v. London & St. Katherine Docks Co., 3 H.& C. 596, 601, 159 Eng.
Rep. 665, 666 (Ex. 1865).
11 Briggs v. Oliver, 4 H.& C. 403, 143 Rev. R. 680 (E.x. 1866).
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res ipsa loquitur was applicable in that there was a prima facie case of
negligence imputed to the defendant and it was incumbent upon the defendant to show that he had used reasonable care and diligence.12 In another, a passenger of a train leaned upon a door to see the lights of the
next station, the door opened, and the plaintiff fell. There was no further
evidence of negligence. The court imputed negligence to the company
for failing to fasten the door adequately even though there was no evidence introduced of that fact. 13 Some significance may be attached to
the fact that both defendants were railroad companies.
Probably the first clear statement of the principle in the United States
was in Mullen v. St. John 4 where the court held that it was reasonable
to presume negligence in the absence of explanation when the cause of
the accident is one which does not ordinarily happen in the case of nonnegligent conduct. But it was not enough to prove the accident and the
also had to be such that the
injury; but the manner and circumstances
15
jury could reasonably infer negligence.
A public policy favorable to plaintiffs seemed to be the great influence
causing the doctrine to become firmly entrenched in this country. An
examination of some of the early cases reveals that the defendant invariably was a common carrier that was required to exercise extraordinary care.18 The reason advanced for the application of res ipsa loquitur
was that by the very nature of the circumstances the passenger rarely
knows of the cause of the injury, while the carrier has the means to show
the facts and, if free from blame, can exonerate itself.' 7 This phase of the
early development of res ipsa loquitur links up with the widespread
judicial policy of the nineteenth century to favor local plaintiffs at the
expense of the railroads that were so strangely and obstreperously spreading themselves across a theretofore placid countryside. Even at the turn
of the century writers expressed concern over the plaintiff's "hardship"
in proving a negligence case.' 8
The doctrine spread rapidly into other areas and factual situations
12Kearney v. London, B.&S.C. Ry., L.R. 5 Q.B. 411 (1870),
af0'd, L.R. 6
Q.B. 760 (1871).
13 Gee v.
guished this
the plaintiff
plaintiff had
14
The Metropolitan Ry., L.R. 8 Q.B. 161 (1873). The court distincase from Adams v. Lancashire & Y. Ry., 4 C.P. 739 (1869), where
attempted to close an open door and was injured. In Adams the
acted at his peril.
57 N.Y. 567 (1874); and see Breen v. New York Cent. & H.R.R., 109 N.Y.
297, 16 N.E. 60 (1888).
15 Griffen v. Manice, 166 N.Y. 188, 59 N.E. 925 (1901).
16 E.g., Southern Pac. R.R. v. Cavin, 144 Fed. 348 (9th Cir. 1906); Cleveland,
C.& I.Ry. v. Newell, 104 Ind. 264, 3 N.E. 836 (1885); LeBlanc v. Sweet, 107
La .355, 31 So. 766 (1901).
17 Southern Pac. R.R. v. Cavin, supra note 16, at 351.
18 See SALMOND, TORTS 30 (2d ed. 1910).
RES IPSA
after obtaining a firm foundation in carrier cases.19 The later cases con-
sistently reflected situations stemming from increased usage of mechanization where the defendant was at a great, if not total, advantage over
the plaintiff in the extent of opportunity to know or understand how the
event came about. But considerable confusion apparently existed, not
so much with respect to the limits of the application of the doctrine as
to its procedural effect. 19a
Many early cases, while recognizing the doctrine, apparently failed to
grasp the significance of the distinction between a presumption and an
inference, partly because the evidentiary presumption was under development during that period and partly because the presumption did not have
the general judicial force it has today.20 Consequently, the evolution of
judicial policy in failing to settle upon the procedural consequences of the
res ipsa element prevented any possible crystallization of res ipsa loqui-
tur. An examination of some early cases reveals that res ipsa loquitur
situations ran the gamut of interpretation. 21 Some courts were apparent-
ly confused in the definition of the terms presumption and inference.
New York was particularly convinced that a presumption was raised by
the doctrine 22 while other eastern courts preferred the inference theory.2
One court employed res ipsa loquitur in a specific negligence case.?Another called proof by purely circumstantial evidence res ipsa loquitur.2 5 Yet another boldly proclaimed that negligence is never presumed
but in the same breath declared that res ipsa loquitur is one mode of
19 Nebraska Bridge v. Jeffery, 169 Fed. 609 (8th Cir. 1909) (breaking of a
rope); Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020 (1895) (powdcr
explosion); Atlanta Coca-Cola v. Danneman, 25 Ga. App. 43, 102 S.E. 542
(1920) (bottle explosion); Lunde v. Cudahy Packing Co., 139 Ia. 688, 117 N.W.
1063 (1908) (engine fly-wheel); Leiferman v. White, 40 N.D. 150, 168 N.W.
569 (1918) (electric shock).
19aSee Kennedy v. McAllaster, 31 App. Div. 453, 52 N.Y. Supp. 714 (1898).
20 Specific statutory presumptions were in effect long before the recognition of
res ipsa loquitur; e.g., a presumption of death from seven years' absence; a prosumption of life from a baby's cry. See 9 HOLDSWORTIt, HIsTORY OF ENGLISH Law
139 (1926).
21 E.g., Peer v. Ryan, 54 Mich. 224, 19 N.W. 961 (1884)
(circumstantial evidence); Graham v. Bauland Co., 97 App. Div. 141, 89 N.Y. Supp. 595 (1904)
(specific negligence); Morris v. Strobel & Wilken Co., 81 Hun 1. 30 N.Y. Supp.
571 (Sup.Ct. 1894) (prima facie negligence).
22
Conner v. Koch, 89 App. Div. 33, 85 N.Y. Supp. 93 (1903); Adams v.
Union Ry., 80 App. Div. 136, 80 N.Y. Supp. 264 (1903); Dohn v. Dawson, 84
Hun 110, 32 N.Y. Supp. 59 (Sup.Ct.Gen.Term 1895); Papazian v. Baumgartner,
49 Misc. 244, 97 N.Y. Supp. 399 (Sup.Ct.App.Term 1906).
23 E.g., Strasburger v. Vogel, 103 Md. 85, 63 At. 202 (1906); Ross v. Double
Shoals Cotton Mills, 140 N.C.115, 52 S.E. 121 (1905).
2 Graham v. Bauland Co., supra note 21.
M Peer v. Ryan, supra note 2 1.
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showing negligence and that the negligence must be controverted or
the plaintiffs are entitled to recover. 26 When res ipsa loquitur became the
subject of discussion by scholars, the focus of their attention was the
problem of procedural effect which the courts had found to be so difficult.
Like the courts, they disagreed about whether res ipsa loquitur operated
to create a presumption or an inference. The attention of the more recent
writers is similarly directed at the procedural consequences, to the detriment of more fundamental problems which the historical development
of the doctrine has caused them to neglect.
III
THE PRESENT CONTROVERSY
In recent years four eminent legal writers brought the controversy between inference and presumption into sharp focus. In fact, the two of
them favoring inference have gone so far as to propose rejection of the res
ipsa loquitur concept, while realizing it is something to which they must
submit in some degree because of its widespread popularity. In the course
of their controversies these scholars have narrowed the argument and
shed considerable analytical light on the concept. While fully appreciating the instructive value of their conflicting theories we feel that the real
crux of the matter involves a distinction between res ipsa loquitur and
circumstantial evidence rather than a controversy between inference and
presumption.
The most basic thesis of Prosser2 and Seavey 28 is that cases applying
res ipsa loquitur are really not distinguishable from cases generally where
a jury is permitted to make findings based on circumstantial evidence.
The theory is that permitting the jury to find that the defendant was negligent despite the lack of direct evidence establishing such negligence
amounts to nothing more than permitting the jury to infer the existence of
fact A from a proof of the existence of fact B. In Seavey's view, "There is
nothing peculiar in the situations in which the phrase is used except the
paucity of evidence." 29 This suggests that res ipsa loquitur is only a
means of classifying the more extreme or dramatic instances where
circumstantial evidence is permitted, and that perhaps without the aid
of some such slogan the circumstantiality would be deemed fatally tenu369, 64 At. 246 (1905).
Res Ipsa Loqttitur, 20 MINN. L. REv.
241 (1936); and Prosser, Res lpsa Loquitur: A Reply to Professor Carpenter,
10 So. CAL. L. REV. 458 (1937).
28 See Seavey, Res lpsa Loquitur: Tabula in Naufragio, 63 H~Av. L. Rnv. 643
(1950).
29 Id., at 645.
26 Wood v. Wilmington City Ry., 21 Del.
27 See Prosser, The ProceduralEffect of
RES IPSA
ous and speculative. Seavey goes on to attack Ybarra v. Spangard"° as a
wrongful application of res ipsa loquitur or any conceivable concept of
circumstantial evidence, at least as applied to some of the defendants,
because under the facts there was nothing proved from which their fault
could be inferred other than on a basis of purely extravagent speculation.
It is argued that such an approach would lead logically to the absurd conclusion that the mere access to the facts is sufficient to prove a case
against a defendant without any proof of facts whereby fault of the defendant could be inferred. Such a line of reasoning would expose a mere
bystander to liability simply because he happened to see what went on,
if from the nature of the case the plaintiff himself could not furnish
direct evidence of the occurrence.
The two defenders of res ipsa loquitur are Professors C. E. Carpenter2 1 and Jaffe. 32 They also agree that much of what passes as res ipsa
loquitur is indistinguishable from the rules as to circumstantial evidence
and should be absorbed by them. However, they do discern, with no
little subtlety and refined perception, an area of independent operation
of the doctrine. This may be said to include, roughly speaking, cases
where there is a substantial but indeterminate probability that the defendant was negligent and where the defendant has greater access to
the facts than does the plaintiff. In such cases one distinguishes res ipsa
loquitur from the ordinary case of circumstantial evidence by adding or
emphasizing the requirement that the defendant have greater access to
the facts, while not insisting that he have complete or exclusive knowledge. This aspect has been traditionally referred to as a requirement of
exclusive control of the instrumentality or situation by the defendant,
and under the Tentative Draft of the second Restatement is covered by
the requirement that the evidence eliminate other responsible causes. 3
A case in which the defendant has no greater means than the plaintiff
of explaining the event must stand or fall on the basis of the sufficiency
of the circumstantial evidence alone, and the slapping of the Latin tag on
it is redundant and superfluous. This would be the case, for example,
with the exploding carbonated drink bottle cases, where the defendant
can normally offer no real evidence as to the facts of the explosion of
the particular bottle in question, and can only show the care exercised in
its standard and routine bottling procedures. Scholars who take such a
view would be equally critical of Ybarra v. Spangard and limit res ipsa
30 25 Cal.2d 486, 154 P.2d 687 (1944).
31 See Carpenter, Res Ipsa Loquitur: A Rejoinder to Professor Prosser, 10 So.
CAL. L. REv. 467 (1937).
See Jaffe, Res Ipsa Loquitur Vindicated, I BUFFALO L. REv. 1 (1951).
TORTS § 328D(1)(b), comments f, g, h, and i
(Tent. Draft No. 5, 1960).
32
33
REsTATEMENT (SEcoND),
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loquitur to cases where the evidence would permit a reasonable inference
of the defendant's faulty complicity.
Jaffe makes a presumption an essential element of res ipsa loquitur if it
is to be preserved as a phenomenon distinct from circumstantial evidence.
In a circumstantial evidence case, involving no presumption, the defendant presents his case, by way of attempted explanation of the event or a
showing of exercise of care, or whatever, and then the whole matter is
sent to the jury, which may choose to disbelieve the defendant and find
for the plaintiff on the strength of his circumstantial case. Where there is a
presumption, however, the plaintiff's case is destroyed where the defendant brings in evidence rebutting the presumption, and Jaffe then awards
the defendant a directed verdict, and the jury will not be allowed to take
the case and disbelieve the rebutting evidence. The only requirement on
the defendant is that his evidence be of a respectable and reasonably
credible nature, and this is a matter for the judge rather than the jury to
determine. This does leave a haunting doubt in one's mind as to how one
is to determine the worthy character of the defendant's evidence short of
the traditional method of the convincing of a jury, to which Jaffe contends
the rebutting defendant should not be subjected.
The distinction between circumstantial evidence and res ipsa
loquitur is a subtle one at best. In most instances circumstantial evidentiary facts must lead to and establish a proposition which of itself
has a relative probative value. The proposition can be supported by an
infinite synthesis of testimonial assertions and circumstances.34 Circumstantial evidence is limited by the predictable possibilities and requires
that the proponent take an affirmative stand in the proof of his case;
but in the res ipsa loquitur case the plaintiff is allowed an infinite number
of avenues to reach the jury by virtue of a negative or lacuna in proof;
i.e., he shows that the event happened, therefore the defendant must
have been negligent, thereby circumventing the normal chain of proof.
There are many conceivable factual situations where either res ipsa
loquitur or circumstantial evidence could be utilized to obtain the desired
result, although sometimes courts have adopted the wrong procedural
35
device.
IV
DISTINGUISHING RES IPSA LOQUITUR
FROM CIRCUMSTANTIAL EVIDENCE
With regard to the inference permitted under res ipsa loquitur, we
submit that it should be enough that merely a general and unspecified
negligence be inferable from the facts put in evidence. This is not,
See WIGMORE, EVIDENCE § 25 (3d ed. 1940).
35See Peer v. Ryan, 54 Mich. 224, 19 N.W. 961 (1884); Shaw v. Calgon, Inc.,
34
35 N.J. Super. 319, 114 A.2d 278 (1955).
RES IPSA
strictly speaking, inference of an evidentiary fact, but rather of a conclusion. It is not required that the fact proven give rise to an inference
specifically of another fact or other facts upon which a conclusion of
negligence could be predicated. Rather may the direct conclusion of
negligence as an abstraction be made, without specification of what facts
were found, by inference, as the basis for the conclusion of negligence.
The language of the Tentative Draft of the second Restatement clearly
supports this view. 36 But there is a difference between a direct inference
of negligence and an inference of further facts which are to be the actual
basis for the conclusion of negligence.
Byrne v. Boadle3 7 is clearly a case where the conclusion of negligence
was directly made without any intervening inference of specific facts.
Why the barrel fell out of the building is not made a subject of speculation. In the absence of additional proof, it is possible to imagine that the
event was caused by any number of reasons for which the defendant
would be responsible. Perhaps a workman threw the barrel out by
way of disposing of the trash; perhaps the defendant's employees were
throwing the barrel around in a frolicsome game of catch; perhaps the
barrel was being rolled across the floor without heed to the proximity
of an open window; perhaps the barrel was inadequately secured on
some kind of incline. This speculation could be indefinitely expanded,
but quite pointlessly, because the fact of the barrel's having fallen out
of the warehouse building is sufficient to permit an inference of the defendant's negligence. It is immaterial that any specific fact constituting
such negligence be inferred, provided the inference include an indeterminate number of facts, any one of which could constitute the negligence.
This is to be contrasted with the situation where the proven facts
can give rise to only one or a limited number of specific facts upon which
negligence can be predicated. Such a case would be where the defendant
left his car parked on a hillside, no other persons were in the vicinity,
and a few minutes later the car rolled down the hill and crashed through
the plaintiff's store window at the bottom. It is difficult to see here how
more than two specific facts could be inferred from which to append the
defendant's negligence. One would be that the defendant had failed to
set his brakes, and the other would be that his brakes were defective.
This type of situation, where the inference is as to one or a limited and
ascertainable number of specific facts, is adequately covered by the
usual concepts of circumstantial evidence. In such a case, instructions
to the jury could be, "You will find for the plaintiff if you believe either
that the defendant failed to set his brakes or that he failed to have his
brakes in proper working condition." This does not seem to require
any special dispensations from the normal rules of proof that are not
already embodied in the principles of circumstantial evidence.
36 § 328D, comment b.
372 H.&C. 722, 159 Eng. Rep. 299 (Ex. 1863).
,
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This suggests, as the distinctive residue for res ipsa loquitur, situations where the inference relates to negligence directly rather than to
specific facts. If this limitation is engrafted upon the other limitations
regarding the distinctions as to circumstantial evidence and the requirement that the defendant have superior access to facts about the occurrence itself, the classification of res ipsa loquitur becomes clearer. Our
analysis is not novel, since it appears to have been the thinking of the
plaintiff's counsel in the London Docks Case, when he argued successfully, "The true test is whether the case is more consistent with negligence than care."
With regard to Jaffe's theory, it seems that we need not quarrel with
his insistence on the presumption, because his theory, too, would necessarily limit res ipsa loquitur to cases where the inference or presumption does not relate to further specific facts, but rather to the abstract
conclusion of negligence. Thus, if we apply Jaffe's presumption theory to
Byrne v. Boadle, the defendant would have destroyed the plaintiff's
case if he had introduced respectable evidence to the effect that a
trespasser had entered the warehouse and, ere the defendant or any of
his servants were the wiser, had callously tossed the barrel on the
plaintiff's head. Similarly, actions against bottlers for damages resulting from exploding bottles would probably not be res ipsa loquitur cases
because ordinarily the defendant bottler has no information concerning
the actual exploding of the bottle. Rather, the jury would be allowed to
infer from the fact of the explosion the further fact that the defendant
had used too weak a bottle for the amount of pressure to be anticipated.
The defendant could introduce exonerating evidence regarding such
matters as the care and prudence used in his usual bottling procedures,
but none of this would bear directly upon the happening of the explosion
in question. Since the defendant has no superior access to the facts of
the occurrence, the case is one of circumstantial evidence rather than res
ipsa loquitur. Under the Jaffe theory no presumption applies and the
whole matter goes to the jury for its belief or disbelief as to the defendant's using too weak a bottle.
But in our view it is really immaterial to the existence of a res ipsa
loquitur case, as distinguished from one of circumstantial evidence,
whether a presumption or a permissible inference is deemed to result.
The distinction between the two cases is based on whether the proven
evidentiary facts of the occurrence are going to give rise to a projection
toward a conclusion of negligence or toward the proof of further
specific facts. The procedural effect to be given the res ipsa loquitur
case, as between inference and presumption, is a further and distinct
consideration and not essential to the distinguishing of the res ipsa
loquitur case. Also, this analysis eliminates the conflict between Jaffe
RES IPSA
and the second Restatement, which seems inherent in Jaffe's insistence
on the presumption.
The distinctions we are attempting can be tested against some situations where injury occurred to the plaintiff under circumstances where
the plaintiff could not directly prove the specific acts constituting the
negligence. Whether these are res ipsa loquitur cases rathe, than circumstantial evidence would depend on whether the infeence would
involve one or a few facts indicating negligence or would involve a
necessary leap to a conclusion of negligence.
Exploding bottle cases are among those illustrative of this distinction,
especially those typical ones where the defendant is the bottler and
the plaintiff a customer at a retail outlet. 38 Such a defendant would
presumably have no agent on hand in charge of the bottle or in a
position to witness its explosion; about the only conceivable fact iniputable to the defendant's responsibility is that defendant let tae bottle
out of its plant in too weak a condition for the pressure it should reasonably be designed to withstand. 39 But if the defendant were the retail
store the case would be one for res ipsa loquitur; for, first, such a
defendant would be in a position, as the plaintiff would not, to give
evidence as to what disposition had been made of the bottle at the time
of and immediately prior to the explosion, and, second, the range of
possible facts, imputable to the responsibility of such a defendant, which
conceivably could have caused the explosion, are indefinite or limitless:
the bottle might have been dropped on the floor, exposed to unreasonable heat or cold, subjected to unreasonable weights on top of it, ex40
posed to harmful or dangerous chemicals, and so on.
Two relatively recent cases, whose facts seemingly suggest direct
lineage from a hoary ancestor in Byrne v. Boadle (and are almost as
picturesque), nevertheless do not carry the same bloodstream, and
41
further illustrate our distinction. One is Larson v. St. Francis Hotel.
There the plaintiff was denied recovery for injuries resulting from a
chair falling out of the defendant's hotel window, on the theory that
a hotel has so many persons as guests whom in the nature of things it
cannot control that there were insufficient grounds for allowing the
3
8 The exploding bottle problem is surveyed in Pound, The Problem of the
Exploding Bottle, 40 B.U.L. REV. 167 (1960).
39
See Zentz v. Coca Cola Bottling Co., 39 Cal. 2d 436, 247 P. 2d 344 (1952),
as typical of these cases. While agreeing with the result the court reached in
holding it permissible for the jury to find by inference that the defendant had
excessively charged the bottle and was thereby negligent, we must disagree with
the court's characterization of this as res ipsa loquitur rather than circumstantial
evidence.
40An example of res ipsa loquitur applied against the retailer is Loch v.
Confair, 372 Pa. 212, 93 A.2d 451 (1953).
4183 Cal. App. 2d 210, 188 P.2d 513 (1948).
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jury to believe that it was through fault of the defendant that the chair
fell out of the window. Res ipsa loquitur was denied. However, the
only possible basis for recovery would be res ipsa loquitur rather than
circumstantial evidence, for the possible facts imputable to the defendant's causing the chair to fall out would be innumerable and only tile
defendant would have any means of explaining the event. Thus, on tile
state of the evidence, the case was correctly determined on the basis
of res ipsa loquitur.
42
The other seemingly cognate case is Connolly v. Nicollet Hotel.
There the plaintiff, on the sidewalk outside the defendant's hotel,
was struck and injured by a mass of muddy substance falling from
the hotel. Had this been the sum total of the evidence, presumably
the fate of the case would have depended on its congeniality to res
ipsa loquitur; and, on the authority of the Larson Case, the plaintiff
presumably would have failed. However, it was shown additionally
in the case that an exceptionally rowdy Junior Chamber of Commerce
convention had been in progress in the hotel, and that the management
was painfully aware of this through destruction of hotel property.
The court considered that this condition could give rise to a duty
on the part of the hotel toward the plaintiff to exercise restraint and
control over its boisterous guests, and that the jury might properly
infer from the falling of the mass of mud the further fact that the
defendant had failed to restrain its guests. The language of the opinion
was carefully couched in terms of inferences from circumstantial evidence rather than res ipsa loquitur. This is consistent with our thesis
that this was properly a circumstantial evidence case rather than res
ipsa loquitur, because the inference to be drawn was the fact of inadequate restraint of guests of the hotel rather than an unspecified inference
of negligence without regard to any specific facts constituting the
negligence.
V
CONCLUSION
Our conclusion is that the hallmarks of res ipsa loquitur, beyond
those specified in the second Restatement draft, are that the defendant
have at least markedly superior access to facts explanatory of the
accident and that the permissible inference to be drawn from the
happening which could result in the defendant's liability be a conclusion
of negligence rather than a circumstantial finding of specific facts upon
which the defendant's negligence could be predicated. If these criteria
are not met in cases otherwise seeming to meet the res ipsa loquitur
specifications, the less exceptional doctrines regarding circumstantial
evidence really govern.
42 254 Minn. 373, 95 N.W.2d 657 (1959).