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Res Ipsa Loquitur – Can Negligence Be Presumed in California Injury Claims?

surgical instrument, medical negligence, California law“Res Ipsa Loquitur” is a Latin phrase which, literally, translates to, “the thing speaks for itself.”  Under California personal injury laws, its meaning is that there are times when evidence cannot necessarily be shown to determine if there was negligence but, the facts and circumstances surrounding an injury show that the person hurt would not normally be harmed in the manner in which they were in the absence of a negligent act.  In other words, where the accident giving rise to injury is probably the result of someone’s negligence because such things usually do not happen absent legal culpability, then the trier of fact [judge or jury] may infer that negligence occurred and the burden would shift to the defendant to show evidence to the contrary. Brown v. Poway Unified School District (1993) 4 Cal.4th 820 .

The law is set out in California Evidence Code §646 as follows:

“(b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.
(c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:
(1) If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and
(2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.”

Three Prong Test for Applying the “Presumed Negligence Doctrine” in California

There are generally three prongs that must be met in order to presume a negligent act under the Laws of the State of California as follows:


• That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;


• That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and


• That the accident was not due to any voluntary action or contribution on plaintiff’s part. [Newing v. Cheatham (1975) 15 C3d 351, 359, 124 CR 193, 199; see California Civil Jury Instruction 417].
In determining whether this condition is satisfied, the trier of fact may consider common knowledge, expert witness testimony, and the circumstances relating to the particular accident in issue.  This is normally an issue for the trier of fact (i.e. a jury).

Examples of when this doctrine is applied in different personal injury claims

Common instances where a “res ipsa loquitur” presumption would arise would include the following:

  • Patient with an instrument left inside their body cavity following surgery: In the medical malpractice context, the most common instance is when a patient comes out of surgery only to find that a surgical instrument such as a clamp, sponge or other device has been retained in his or her body cavity.  Normally, doctors and nurses are supposed to count the total number of instruments and devices and to recount what was used after the surgery to insure that such things don’t happen.
  • Premises Liability Claims: While the typical “slip and fall” in a commercial establishment usually doesn’t evoke the doctrine of Res Ipsa Loquitur, there are instances where the doctrine has been applied related to accidents on commercial properties such as restaurants.  For example, the doctrine was applied to an instance where a person was injured when a stool (being used normally) collapsed and caused a fall.  The court reasoned as follows:
    “First, it is safe to say that in light of common experience, a counter stool does not ordinarily fall off its base when used normally unless someone is negligent. Second, the counter stool in this case was in respondent’s exclusive control. According to the declarations of Jose Delgado, the manager of respondent’s restaurant for 14 years preceding the current manager, and Tomas Ruiz, who has been the manager of respondent’s restaurant since November 2007, no changes or modifications were made in the method by which the stool was attached to its metal base. Finally, appellant sat upon the stool in an ordinary manner, tilting it about an inch to facilitate his doing so. There was sufficient evidence to establish that the doctrine of res ipsa loquitur applied.” Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1162 [117 Cal.Rptr.3d 126, 130]
  • Product Liability Claims: There are numerous instances where products explode or break upon normal use and the courts have applied the Res Ipsa doctrine to show that the “instrument of injury” (the product) was in the exclusive control of the manufacturer and/or distributor and would not have exploded or broken absence negligence in the manufacturing or distribution of the product.

Necessity for employing a knowledgeable California injury lawyer to analyze any instance where a presumption of negligence may lie:

While it is rare that a California court would allow an instruction that negligence may be presumed, these cases can and do happen.  Without the assistance of competent legal counsel to analyze the facts of any particular case, it is impossible to know whether this doctrine applies or if it can be used to leverage a settlement or to obtain a judgment by jury trial.  Retaining an attorney to analyze these instances is crucial!

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