Torts Outline – NYU – Fox – Spring 2008

This torts outline contains 60 pages and was prepared for Professor Fox’s spring 2008 course at NYU. Immediately after ordering you will receive an email containing links to the file in both DOC and PDF formats. You may download both files as many times as you like for 72 hours.

Res Ipsa Loquitur

1. An inference arises that the defendant has been negligent when the accident causing the harm is a type of accident that ordinarily occurs through the negligence of the class of actors of which the defendant is a relevant member.

2. Directed Verdict vs. Prima Facie Case
(a) In the case of a directed verdict the plaintiff is entitled to judgment as matter of law. The matter is not presented to the jury.
(i) The standard is very high and res ipsa loquitur usually will not secure a directed verdict.
(ii) Restatement (Third) of Torts § 17: Only in very unusual situations does the plaintiff’s res ipsa loquitur claim justify a directed verdict.
(iii) Since the doctrine gives rise only to a permissive inference, in most cases a directed verdict for the will not be appropriate, even where the defendant presents no explanation or rebuttal, because the jury must decide whether to draw the inference of negligence from the circumstances of the occurrence.
(iv)If however the inference is so strong that it amounts to a presumption, the plaintiff is entitled to a directed verdict unless the defendant comes forward with other evidence.
(1) A case involving a mouse in a loaf of bread by sole baker resulted in a directed verdict for the plaintiff.
(2) In Newing v. Cheatham, a plane crashed and there was no fuel in the tank, and the pilot was drunk and was in exclusive control of the aircraft.
(3) In Byrne v. Boadle the court held that if the plaintiff can establish that the barrels were handled only by the defendant’s employees, then the inference becomes a solid presumption of negligence.
(4) The defendant has burden of going forward.
(5) It is not enough for the defendant to show that he exercised due care. The accident has already happened and we already know someone was in fact negligent.
(6) The plaintiff would have to prove that a third party barged in and threw out the barrel or was otherwise responsible.

3. Prima Facie Case
(i) Prima facie case means the plaintiff has made enough of a showing on the facts for question to be presented to jury. If the case is strong enough a directed verdict may be available.
(ii) Res ipsa loquitur usually involves cases where the plaintiff cannot determine the cause or guilty party by direct evidence, although circumstantial evidence establishes a prima facie case.
(iii) Burden shifting: The defendant now has the burden of demonstrating that the accident wasn’t his fault. Otherwise he loses
(1) Majority view: Res ipsa loquitur creates a permissible inference of negligence. The issue is presented to the jury and the plaintiff still has the burden of proof. It is possible that inference could be sufficiently strong such that the defendant will be found negligent if evidence not rebutted.
(2) Minority view: Res ipsa loquitur creates a rebuttable presumption against the defendant who then has the burden of demonstrating that he was not negligent by a preponderance of the evidence.

4. Is this a doctrine of logical inference or a doctrine of justice? Usually it is a logical inference, but sometimes it is a doctrine of justice. Always ask whether a logical inference is possible.
(i) In Byrne v. Boadle the court uses language of justice but makes a logical inference in its reasoning.
(ii) In Ybarra v. Spangard the plaintiff was injured during surgery but did not know who was responsible. His shoulder became paralyzed. The court permitted res ipsa loquitur.