Are We Allowing the Thing to Speak for Itself? Linnear v. CenterPoint Energy and Res Ipsa Loquitur in Louisiana

• Author: Alan W. Stewart
• Pages: 1091-1110

Are We Allowing the Thing to Speak for Itself?

Linnear v. CenterPoint Energy and Res Ipsa Loquitur

in Louisiana

I.INTRODUCTION

―We can imagine no reason why, with ordinary care human

toes could not be left out of chewing tobacco, and if toes are found

in chewing tobacco, it seems to us that somebody has been very

careless.‖

1

And such is the doctrine of res ipsa loquitur.

Latin for ―the thing speaks for itself,‖ it is a jurisprudential rule

of evidence that allows a plaintiff to meet the burden of proving a

defendant‘s breach in a negligence claim using only circumstantial

evidence.

2

The fact finder infers negligence based on his

experience that such accidents do not occur in the absence of

negligence.

3

For example, in a case where human toes are found in

a sealed package of chewing tobacco, a plaintiff is likely to have

no direct evidence of the manufacturer‘s negligence—only the

circumstances surrounding his injury.

4

Yet, it is clear that the harm

was, more likely than not, caused by a breach of the

manufacturer‘s duty to its customer.

5

The unusual circumstance of

finding the toes ―speaks for itself‖—that the manufacturer was

probably negligent. If the plaintiff‘s case meets the requirements

for res ipsa loquitur, he receives the benefit of the doctrine—

permitting the fact finder to infer the defendant‘s breach based on

the available circumstantial evidence.

6

The plaintiff can survive the

defendant‘s motions for both summary judgment and directed

verdict, allowing his case to reach a jury despite the absence of

direct evidence.

7

Although the purpose of res ipsa loquitur is clear, the elements,

effect, and burden of proof of the doctrine differ from jurisdiction

Copyright 2011, by ALAN W.STEWART.

1

. Pillars v. R.J. Reynolds Tobacco Co., 78 So. 365, 366 (Miss. 1918).

2

. Linnear v. CenterPoint E nergy Entex/Relia nt Energy, 966 So. 2d 36, 41

(La. 2007) (citing Linnear v. CenterPo int Energy Entex/Reliant Energy, 945 So.

2d 1, 8 (La. Ct. App. 2d 2006)); Wex S. Malone, Res Ipsa Loquitur a nd Proof by

Inference—A Discussion of the Louisiana Cases, 4 LA.L.REV. 70, 72–73

(1941).

3

. Montgomery v. Opelousas Gen. Hosp., 540 So. 2d 312, 319 (La. 1989 ).

4

. See id.

5

. See id.

6

. W.PAGE KEETON ET AL.,PROSSER AND KEETON ON THE LAW OF TORTS

§40,at257–58(5th ed. 1984).

7

. See id. at 258.

1092 LOUISIANA LAW REVIEW[Vol. 71

to jurisdiction.

8

In some courts the plaintiff always bears the

burden of proof, and in other courts, the burden shifts to the

defendant when the plaintiff successfully invokes the res ipsa

doctrine.

9

Sometimes the doctrine creates a presumption of

negligence; other times it only permits a fact finder‘s inference of

such.

10

Louisiana courts have had similar conflicting opinions over

the doctrine‘s rules, despite the efforts of the Louisiana Supreme

Court to clear up some of the confusion.

11

In 2007 in Linnear v. CenterPoint Energy, the Louisiana

Supreme Court addressed the requirements for a plaintiff to be

entitled to a res ipsa loquitur jury instruction.

12

That opinion

heightened the standard to obtain such an instruction, making it

extraordinarily difficult for the issue to reach a jury.

13

This Note

argues that the court erred in creating such a high standard for

applicability of the doctrine. Additionally, even if the plaintiff can

meet this standard, Linnear makes the procedural effect of the

doctrine only a permissive inference, as opposed to a rebuttable

presumption.

14

Because res ipsa loquitur continues to have this

light procedural effect and narrow applicability due to the difficult

Linnear requirements, the doctrine, as it stands today in Louisiana,

is no longer efficacious. Ironically, this evidentiary doctrine that

was originally created to assist a plaintiff in bringing a negligence

claim now hampers his ability to do so. This Note argues that the

doctrine should either, in some instances, produce a rebuttable

presumption or be eliminated from Louisiana law altogether.

Part II of this Note explores the history of res ipsa loquitur and

explains the current state of the doctrine in Louisiana, including

8

. See infra note 9 and accompanying text.

9

. Although some courts recognize a s hifting burden toward the defendant,

this burden is usually the burden of producing evidence. See Annotation, Res

Ipsa Loquitur in Its Relation to Bur den of P roof a nd Burden of Evidence, 59

A.L.R. 486 (1929); 92 A.L.R. 653 (1934).

10

. Courts frequently and fallaciously interchanged the terms

―presumption‖ and ―inference,‖ referring to a presumption of ne gligence when

the actual effect was a permissive in ference of negligence. See Annotation, ―Res

Ipsa Loquitur‖ as a Presumption or a Mere Permissible Inference, 5 3 A.L.R.

1494 (1928); 167 A.L.R. 658 (1947).

11

. See infra Part II.B.2–3.

12

. Linnear v. CenterPoint E nergy Entex/Reliant Energy, 966 So. 2d 36, 42

(La. 2007).

13

. Several cases illustrate the recent trend of plai ntiffs being denied the use

of res ipsa loquitur. See, e.g., Pinegar v. Harris, 20 So. 3d 1081 (La. Ct. App. 1st

2009); Dronette v. Shelter Ins. Co., 998 So. 2d 942 (La. Ct. App. 3d 2008);

Kramer v. Petroleum Helicopters, Inc., 99 9 So. 2d 101 (La. Ct. App. 3d 2008);

Desoto v. Ford Motor Co., 975 So. 2d 195 (La. Ct. App. 3d 2008); Williams v.

A&M Operating Co., 973 So. 2d 138 (La. Ct. App. 2d 2007).

14

. Linnear, 966 So. 2d at 43.