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, at 257–58 (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.