Introduction to Res Ipsa Loquitur:
In a negligence case, a plaintiff has the burden of proof. In other words, it is the plaintiff’s responsibility to show the existence of facts which demonstrate they should recover in their case. In a negligence action, therefore, the plaintiff must prove that there was a certain standard of care that was breached and proximately caused damages. Ordinarily, negligence cannot be inferred from the mere fact of injury.[i] Permitting recovery based on injury alone (without evidence that specific conduct was actually unreasonable) would discourage publicly profitable activity. Therefore, plaintiffs are generally required to prove a specific act of negligence to recover damages.[ii] But, for a limited class of cases, an exception – res ipsa loquitur – exists.[iii]
Res ipsa loquitur is premised on the “doctrine of probabilities.”[iv] If, based on common knowledge, the occurrence is ordinarily caused by negligence, res ipsa loquitur allows the jury to infer negligence from the circumstances surrounding the accident.[v] Res ipsa loquitur does not shift the burden of proof.[vi] In a res ipsa loquitur case, as in any other case, the plaintiff starts out bearing both the burden of proof and the burden of evidence.[vii] By showing, for instance, that plaintiff was a passenger, the defendant a carrier, a train wreck, and consequent injury to him, plaintiff makes a prima facie case, since these facts raise an inference, or, as some authorities say, a presumption or “prima facie presumption,” that the accident was occasioned by the defendant’s negligence in some way. The plaintiff still carries the risk of non-persuasion, and must show by the greater weight of the evidence that he was injured as a result of the defendant’s negligence.[viii]
Basic Requirements of Res Ipsa Loquitur:
In practical terms, res ipsa loquitur is a rule of evidence.[ix] Under this rule of evidence, a plaintiff is relieved from the burden of pleading and proving specific negligence.[x] Res ipsa loquitur declares certain circumstantial evidence sufficient to withstand a motion for directed verdict as a matter of law.[xi] If the doctrine applies, the jury can infer negligence based on the evidence, and is so instructed.[xii]
Res ipsa loquitur is often described as consisting of three elements.[xiii] This description, however, oversimplifies. In fact, res ipsa loquitur operates in two steps. During the first step, the judge applies the classic three-element test and determines whether:
- Based on common knowledge, the occurrence resulting in injury is ordinarily caused by negligence
- Defendant has superior knowledge or access to information about the cause of the occurrence
- Defendant controlled the instrumentalities involved [xiv]
“The application of the doctrine simply requires that facts and circumstances … existed from which one can conclude that, more often than not, an occurrence or accident of the type involved results from a failure to exercise reasonable care by the party in charge of the instrumentality.”[xv]
To determine whether an incident would not ordinarily occur in the absence of negligence, trial court judges apply their commonsense and life experience to the incident.[xvi] The necessity for the first requirement is obvious; the facts must create a reasonable inference that the accident would not have occurred absent the negligence of someone,[xvii] or it would be patently unfair as well as opposed to all existing principles controlling the placing of the burdens of producing evidence and of persuasion.
With respect to the second element, “Missouri courts often infer the ‘superior knowledge’ element of res ipsa loquitur from the defendant’s control over the instrumentality at issue.”[xviii] Because of the underlying theory that one who is in control of the instrumentality causing the injury will generally have access to facts unknown to the other party,[xix] the requirement of defendant’s superior knowledge would not need to be independently established. In fact a showing by plaintiff that he is ignorant of the facts and that defendant either does[xx] or should know them is not enough to establish a res ipsa case unless the other requirements are also present.
Finally, the third element, which sets forth “[t]he requirement that the instrumentality be under the management and control of the defendant does not mean, nor is limited to, actual physical control, but refers rather to the right of control….”[xxi] The requirement that the defendant be in control of the accident-causing instrumentalities is designed to ensure that the negligence will properly be attributed to the defendant and not to the plaintiff or some stranger. Although the rule as usually stated is that control relates either to physical control or the right to control[xxii] at the time of the alleged negligent act,[xxiii] the Supreme Court of Missouri, in Mayback v. Falstaff Brewing Corporation,[xxiv] making no reference to that test, stated that in a res ipsa case the defendant must have at least the right to control at the time of the injury.[xxv] Since res ipsa has been considered applicable where there is a possibility of an intermeddler[xxvi] as well as where an instrumentality other than that of the defendant is involved,[xxvii] the Mayback case with its requirement of control at the time of the injury may mean that a different criterion is appropriate in bursting bottle cases than is required in other situations.[xxviii]
Once a plaintiff establishes the three elements of res ipsa loquitur, an inference of the defendant’s negligence arises.[xxix] Res ipsa loquitur is incompatible with pleading or proof of specific negligence.[xxx] The first and second determinations are pure questions of law, which are not submitted to the jury.[xxxi] Additionally, it is well settled in Missouri that liability expert testimony is prohibited in res ipsa loquitur claims. The basis of this principle is that the gravamen of a res ipsa loquitur claim is that the defendant’s negligence is obvious to an ordinary layperson.[xxxii]
During the second step, if the judge determines that res ipsa loquitur should apply, the jury receives a special res ipsa loquitur instruction. The instruction tells the jury to decide for plaintiff if they believe:
- Defendant controlled, had a right to control, or managed the instrumentality involved
- The circumstances of the accident
- Based on inferences from the circumstances, defendant was negligent
- Defendant’s negligence directly caused damage to plaintiff [xxxiii]
Thus, in this two-step process, the judge screens claims to determine whether they should be submitted with a res ipsa loquitur instruction. If the instruction is submitted, the jury is explicitly permitted to infer negligence from the fact of injury.[xxxiv] But, the jury will only be permitted to make this inference for occurrences that, based on common knowledge, are ordinarily caused by negligence.[xxxv]
Representative Applications of Res Ipsa Loquitur:
In Carroll v. May Department Stores, an action for injuries to a plaintiff’s wife who, while upon a sidewalk adjoining a building occupied in part by defendant, was struck by a metal ash stand that fell from a window of a room on one of the floors occupied by defendant.[xxxvi] Evidence presented by plaintiff showed that the room from which the ash stand fell was one of several “listening rooms” provided by defendant for the use of its customers in listening to the playing of popular music on phonographic records, and that “jitterbugs” and other customers frequented such listening rooms. Further, plaintiff also adduced evidence that showed that no one could enter any of such rooms without a key, only defendant’s employees had keys to such rooms, and that there was a total lack of any evidence tending to show the presence of any third person in the room from which the ash stand fell at the time of or immediately preceding the accident. The Carroll court held that the evidence showed that there was: (a) an occurrence resulting in injury to plaintiff’s wife which was such as does not ordinarily happen if those in charge of the instrumentality causing the injury use due care; (b) the instrumentality involved was under the management and control of the defendant; and (c) the defendant possessed superior knowledge or means of information as to the cause of the occurrence.
Res ipsa loquitur has also been held applicable for injuries received in the falling of a jackhammer on the foot of a plaintiff;[xxxvii] in a situation where a large metal box was dropped from a defendant’s trailer into the path of an oncoming automobile in which plaintiff was riding;[xxxviii] for injuries sustained by a passenger in a truck which overturned down an embankment and into a ditch when the left front wheel suddenly came off;[xxxix] and to an action by a tenant against landlords, who had employed a corporation to do remodeling work on the heating plant, where the employee of the corporation doing the work allegedly operated an acetylene torch in such manner as to cause damages to personal property and loss of profits.[xl]
Properly understood, as a limited exception to the specific negligence requirement, res ipsa loquitur is an important component of tort law, allowing plaintiffs to recover damages when defendants were very likely negligent.
[i] See, e.g., Swope v. Printz, 468 S.W.2d 34, 39 (Mo. 1971).
[ii] See Semler v. Kansas City Pub. Serv. Co., 196 S.W.2d 197, 199 (Mo. 1946).
[iv] Frazier v. Ford Motor Co., 276 S.W.2d 95, 98 (Mo. banc 1955), cited in Martin v. City of Washington, 848 S.W.2d 487, 495 (Mo. banc 1993); Myers v. City of Independence, 189 S.W. 816, 822 (Mo. 1916) (res ipsa loquitur “owes its efficacy to the probability that acts flow from their usual and natural causes, and produce their usual and natural results, and are therefore evidence of the existence of such cause or result”).
[v] See Hasemeier v. Smith, 361 S.W.2d 697, 700-01 (Mo. banc 1962); Cudney v. Midcontinent Airlines, Inc., 254 S.W.2d 662, 666-67 (Mo. banc 1953).
[vi] Frazier, 276 S.W.2d at 98-99; McCloskey v. Koplar, 46 S.W.2d 557, 561-64 (Mo. banc 1932).
[vii] McCloskey, 46 S.W.2d at 563.
[ix] See, e.g., Martin, 848 S.W.2d at 495; Hasemeier, 361 S.W.2d at 700.
[x] Bonnot v. City of Jefferson City, 791 S.W.2d 766, 768 (Mo. App. W.D. 1990).
[xi] Frazier, 276 S.W.2d at 98 (quoting Harke v. Hasse, 75 S.W.2d 1001, 1003 (Mo. 1934)).
[xii] See Martin, 848 S.W.2d at 495 (res ipsa loquitur applies to the breach element of negligence, but not causation); MAI 31.02(3) (6th ed.).
[xiii] See, e.g., Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo. banc 1983).
[xiv] See, e.g., Bass, 646 S.W.2d at 768; City of Kennett v. Akers, 564 S.W.2d 41, 45 (Mo. banc 1978); see also Boulos v. Kansas City Pub. Serv. Co., 223 S.W.2d 446 (Mo. 1949); Welch v. Thompson, 210 S.W.2d 79 (Mo. 1948); Palmer v. Brooks, 169 S.W.2d 906 (Mo. 1943); McCloskey, 46 S.W.2d at 557; Van Houten v. Kansas City Pub. Serv. Co., 122 S.W.2d 868 (Mo. 1938). For a general discussion compare PROSSER, TORTS 291 (1941) with IX WIGMORE, EVIDENCE § 2509 (3d ed. 1940).
[xv] Weaks v. Rupp, 966 S.W.2d 387, 394 (Mo. App. W.D. 1998).
[xvi] Eversole v. Woods Acquisition, Inc., 135 S.W.3d 425, 428 (Mo. App. W.D. 2004) (quoting City of Kennett, 564 S.W.2d at 45).
[xvii] Grindstaff v. J. Goldberg & Sons Structural Steel Co., 40 S.W.2d 702, 705 (Mo. 1931). “To make out a case for the application of the doctrine of res ipsa loquitur the facts relied on must be such as to reasonably exclude any other hypothesis than that of negligence claimed. …. [It] is not necessary that they exclude every possible hypothesis except that of the defendant’s negligence.” Cruce v. Gulf, Mobile & Ohio R.R., 216 S.W.2d 78 (Mo. 1949); Charlton v. Lovelace, 173 S.W.2d 13 (Mo. 1943) (“[M]ere occurrence of an injury is not sufficient to invoke the doctrine.”); Ibbs v. General Motors Corp., 166 S.W.2d 575 (Mo. 1942) (“[F]acts must exclude contributory negligence of plaintiff.”); Estes v. Estes, 127 S.W.2d 78 (Mo. App. 1939) (“[D]octrine not to be applied where it is a surmise or a mere possibility only that the defendant’s negligence caused the damage.”); Hart v. Emery-Bird-Thayer Dry Goods Co., 118 S.W.2d 509 (Mo. App. 1938).
[xviii] Weaks, 966 S.W.2d at 395.
[xix] McClintock v. Terminal R.R. Ass’n. of St. Louis, 257 S.W.2d 180 (Mo. App. 1953). Defendant kept a skilled crew on its elevators and checked them every two hours. A newly hired seventeen-year-old mail clerk was injured on the elevator. The court declared that under the facts the defendant must have superior knowledge of the cause of the accident.
[xx] Venditti v. St. Louis Pub. Serv. Co., 226 S.W.2d 599, 602 (Mo. 1950). In McClintock v. St. Louis Pub. Serv. Co., 257 S.W.2d 180 (Mo. App. 1953) defendant argued that the discovery procedure under the Missouri Code of Civil Procedure had ended the necessity for the res ipsa doctrine because plaintiff’s knowledge could, at least, equal defendant’s. The court merely declined any serious consideration and summarily dismissed the argument.
[xxi] Weaks, 966 S.W.2d at 394–95.
[xxii] Pandjiris v. Oliver Cadillac Co., 98 S.W.2d 969 (Mo. 1936); McCloskey, 46 S.W.2d at 557; Bobbitt v. Salamander, 221 S.W.2d 971 (Mo. App. 1949). In quoting an earlier Missouri case Cruce, 216 S.W.2d at 80 states: “‘The rule that the exclusive control and management of the appliance or thing causing the injury must be shown to have been in the defendant does not mean physical control, but refers to the right of such control. …’”
[xxiii] McCloskey, 46 S.W.2d at 560. Some cases quoting the McCloskey case omit the words, “at the time the negligence was committed,” but the clear implication is that such is still the test. Cruce, 216 S.W.2d at 78 (“[D]octrine applies if instrumentality causing the injury was, at the time, under exclusive control of defendant.”); Cantley v. Missouri-Kansas Texas R.R., 183 S.W.2d 123 (Mo. 1944).
[xxiv] 222 S.W.2d 87 (1949).
[xxvi] See Bobbitt, 221 S.W.2d at 971, Hart, 118 S.W.2d 509 (Mo. App. 1938). The basis for this has been that res ipsa is a matter of probability.
[xxvii] Belding v. St. Louis Pub. Serv. Co., 205 S.W.2d 866 (Mo. App. 1947); Stephens v. Kansas City Gas Co., 191 S.W.2d 601 (Mo. 1946); Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654 (Mo. 1933).
[xxviii] Compare Mayback, 222 S.W.2d at 87 (bursting bottle case), with McCloskey, 46 S.W.2d at 557 (falling object case).
[xxix] Redfield v. Beverly Health & Rehabilitation Serv., Inc., 42 S.W.3d 703, 714 (Mo. App. E.D. 2001).
[xxx] Bonnot, 791 S.W.2d at 769.
[xxxi] See Niman v. Plaza House, Inc., 471 S.W.2d 207, 212-14 (Mo. banc 1971); Parlow v. Dan Hamm Drayage Co., 391 S.W.2d 315, 323-24 (Mo. 1965). See also MAI 31.02(3) & Comm. Cmt.
[xxxii] See Watts v. Sechler, 140 S.W.3d 232, 241-42 (Mo. App. 2004) (“[H]olding that res ipsa was inapplicable in case involving allegation that alfalfa hay poisoned dairy cattle in that “laymen would [not] know, based on their common knowledge or experience, that alfalfa hay will not contain aflatoxin or other toxic substances, unless the person producing and selling the hay was negligent in some way.”).
[xxxiii] MAI 31.02(3).
[xxxv] See, e.g., Niman, 471 S.W.2d at 212-14; Hasemeier, 361 S.W.2d at 700.
[xxxvi] 180 S.W.2d 793 (Mo. App. 1944)
[xxxvii] Westfall v. Mossinghoff, J & Co., 345 S.W.2d 148 (Mo. 1961).
[xxxviii] Grote v. Reed, 345 S.W.2d 96 (Mo. 1961).
[xxxix] Golian v. Stanley, 334 S.W.2d 88 (Mo. 1960).
[xl] Gateway Chem. Co. v. Groves, 338 S.W.2d 83 (Mo. 1960).