Chapter 27 - § 27.4 • RES IPSA LOQUITOR

• Jurisdiction: Colorado

§ 27.4 • RES IPSA LOQUITOR

The phrase "res ipsa loquitor" is a Latin term meaning "the act speaks for itself." Res ipsa loquitor "is a common-law evidentiary rule that creates a rebuttable presumption that the defendant was negligent."⁶⁴ Because it is a rule of evidence, it does not create a substantive right⁶⁵ or a separate claim for relief.⁶⁶ To invoke the doctrine of res ipsa loquitor, a plaintiff must present evidence demonstrating "that (1) causes other than negligence have been sufficiently eliminated; (2) the event is one that ordinarily does not occur absent negligence; and (3) the act at issue falls within the scope of the duty owed."⁶⁷ Satisfaction of these three elements creates a rebuttable presumption that shifts the burden to the party against whom it is directed to present evidence that rebuts the presumption.⁶⁸ Like other rebuttable presumptions, however, res ipsa loquitur shifts to the defendant "only the burden of producing legally sufficient evidence — the burden of proof always remains on the plaintiff."⁶⁹ "If the defendant satisfies that burden of production, that presumption is destroyed and only a permissible inference of negligence remains."⁷⁰ Id. Stated another way, if the party against whom the presumption is directed presents sufficient evidence to rebut the presumption, "'a permissible inference of negligence remains' and the jury may consider this inference along with the other evidence to determine whether that party was negligent."⁷¹

--------

Notes:

^[64] Chapman v. Harner, 2014 CO 78, ¶ 5; see also Spoor v. Serota, 852 P.2d 1292, 1295 (Colo. App. 1992) (res ipsa loquitor is a "rule of evidence which defines the circumstances under which a presumption of negligence will arise as a matter of law").

^[65] Id. at ¶ 21, n.3.

^[66] Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 (Colo. 1991), overruled on other grounds, Chapman, 2014 CO 78, ¶ 26.

^[67] Vititoe v. Rocky Mtn. Pavement Maintenance, Inc., 2015 COA 82, ¶ 82. See also CJI-Civ. 9:17 and Notes on Use (CLE ed. 2018).

^[68] Chapman, 2014 CO 78, ¶ 25.

^[69] Id.

^[70] Id.

^[71] Vititoe, 2015 COA 82, ¶ 83 (quoting Chapman, 2014 CO 78, ¶ 25).