Coming up in Torts this week: the doctrine of res ipsa loquitur. That latin term means "the thing speaks for itself," and it has to do with the use of circumstantial evidence to prove negligence.
The classic formulation of the doctrine comes from Byrne v. Boadle, a 19th century British case (150 Eng. Rep. 299). The plaintiff was walking down a public street when a barrel of flour fell from a window, hit him, and injured him. How much does he have to prove, and how much evidence does he need to provide that the owner of the flour shop is responsible for this?
According to the judge, this is one of those cases where the thing does speak for itself. In the words of the Chief Baron, "It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous."
So in a case like this, the defendant has to prove that the barrel fell for reasons other than negligence. The thing speaks for itself, at least unless compelling evidence is introduced to suggest otherwise. And it's the defendant's job to produce that evidence and provide an alternate cause.
What would qualify as an alternate cause? Well, it is possible that a group of performance artists took over the side of the building and decided to bring Donkey Kong to life. In the middle of the game, an errant barrel came down and struck the plaintiff as he passed by. What would proving this require? Well, I imagine that you'd start with testimony establishing that someone dressed like a giant ape was perched atop the building, and that a mustachioed plumber was seen hopping from fire escape to fire escape at the time in question.
While this probably wouldn't have happened back in the 1860s, it's at least conceivable today.
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