The law of falling objects: Byrne v. Boadle and the birth of res ipsa loquitur.

• Author: Webb, G. Gregg

INTRODUCTION I. THE CASE OF BYRNE V. BOADLE II. THE ORIGINS OF BYRNE V. BOADLE AND RES IPSA LOQUITUR A. The Classical Law of Falling Objects B. The Roots of Presumptive Negligence C. The Barons: Linking Byrne and Presumptive Negligence 1. Pollock, C.B. 2. Bramwell, B. III. PLACING BYRNE AND RES IPSA LOQUITUR IN THE HISTORICAL NARRATIVE OF TORTS CONCLUSION INTRODUCTION

In Latin, the phrase res ipsa loquitur means "the thing speaks for itself." In the law, few concepts have created more confusion among scholars and practitioners than the evidentiary doctrine of res ipsa loquitur. Commentators have attempted to characterize the phrase alternatively as a rule, principle, doctrine, maxim, and for one particularly frustrated scholar, a myth. (1) Likewise, res ipsa loquitur has resisted all attempts by legal authorities to delineate its scope. In the words of another eminent, but exasperated, scholar, res ipsa loquitur "is used in different senses[;] ... it means inference, it means presumption, it means no one thing--in short it means nothing." (2) Nonetheless, the maxim has appeared in thousands of cases since its first articulation in the mid-nineteenth century and shows no signs of leaving the legal lexicon. The most widely accepted interpretations of res ipsa loquitur include (3): (1) that it creates a permissible inference of negligence for a jury in situations where a plaintiff can only show that an injurious event occurred; (2) that it presents a rebuttable presumption requiring a jury to find for a plaintiff in the absence of exculpatory evidence from the defendant; or (3) that it forces an affirmative shift in the burden of proof from plaintiff to defendant. (4)

Abundant scholarship exists debating the nature of res ipsa loquitur, due in large part no doubt to the deep ambiguities that continue to shroud the doctrine. Perhaps the only aspect of res ipsa loquitur which has not spawned heated intellectual and juridical debate has been the doctrine's origin. The minimal historical inquiry into res ipsa's roots may be related to the unambiguous and overt way in which the phrase "res ipsa loquitur" entered the English common law of torts.

Nearly all commentators agree that the first use of the colloquial Latin tag in the negligence context came in the 1863 case of Byrne v. Boadle, in which a Liverpool flour merchant was sued by a pedestrian who had been struck and seriously injured by a barrel plummeting from the merchant's second-story storeroom. (5) The case came before the common law Court of Exchequer on appeal, and the court's head, Chief Baron Jonathan Frederick Pollock, favoring the plaintiff despite his inability to present affirmative evidence of the defendant's negligence, observed that "[t]here are certain cases of which it may be said res ipsa loquitur, and this seems one of them." (6) In context, Pollock's choice of Latin phraseology was more a gilded bauble of his classical education at Cambridge than a conscious attempt to generate a new legalism; however, subsequent jurisprudence soon minted Pollock's words into legal coinage. (7)

Rarely has the first use of a well-known legal phrase been so clearly traceable to an individual case. Res ipsa loquitur's enticingly straightforward entry into the language of the common law has lulled not a few authors into dashing off cursory accounts of its beginnings and may explain the paucity of historical investigation into the doctrine's roots. (8) It would be ironic indeed if commentators were to presume that the doctrine's past speaks for itself.

Not all res ipsa expositors have ignored the search for historical antecedents. Several have asserted that the presumption of negligence allowed under the res ipsa doctrine can be viewed as an outgrowth of the higher standards of care imposed on common carriers during the first half of the nineteenth century. (9) This line of reasoning merits consideration. Enterprise liability was the main arena for doctrinal expansion in tort law during the nineteenth century, and the vast majority of case law cited in Byrne and its immediate progeny involved common-carrier liability.

This Note expands on previous scholarship citing a connection between the emergence of an independent doctrine of res ipsa loquitur in the 1860s and earlier developments in enterprise liability. Existing inquiries have not delved deeply enough into the relationship between these two aspects of tort history. No account is dedicated exclusively, or even primarily, to charting the doctrinal developments out of which Byrne v. Boadle arose. (10) Most attempts to position res ipsa loquitur in historical context entertain doctrinal agendas. (ll) Furthermore, this scholarship suffers from omissions at both the factual level--lacking consideration of the judges, lawyers, and parties involved in individual cases like Byrne--and at the most abstract, theoretical levels--omitting linkages to the wider historical context within which tort and evidence law evolved during the nineteenth century.

The main purpose of this Note is to explore the factual and jurisprudential background of Byrne v. Boadle and to reexamine the case's founding role in the creation of the doctrine of res ipsa loquitur. Part I reviews the circumstances giving rise to the legal dispute between Mr. Byrne and Mr. Boadle and outlines the procedural history of the litigation as it wound its way from Liverpool's Scotland Road, to the local Court of Passage, and finally to the Court of Exchequer in London where Chief Baron Pollock delivered the fated phrase "res ipsa loquitur." This Part provides a factual foundation for understanding the place of Byrne v. Boadle, and res ipsa doctrine generally, in the history of tort law.

Part II of this work examines why the judges hearing Byrne v. Boadle in 1863 ruled unanimously in favor of plaintiff Joseph Byrne, finding he had met the proof requirements to sustain his action even though he could present no affirmative evidence of negligence on the part of either the defendant flour dealer or his employees. Even if one accepts the hypothesis that the doctrine of res ipsa loquitur grew out of higher standards of liability for common carriers and others operating under special duties during this period, the fact that Byrne v. Boadle is not an enterprise liability case distinguishes it from those cases where presumptions of negligence were imposed. It is further safe to presume (and will be affirmatively shown) that the effects of gravity, in the form of falling objects, had been a danger subject to legal regulation since classical times. The Byrne case seemingly lacked a novel legal quandary worthy of a novel legal solution. Consequently, both the Exchequer's heavy reliance on common-carrier cases in its opinion as well as subsequent scholarship identifying a link between res ipsa and enterprise liability appear suspect at first. Why would the Exchequer have extended one of its most current legal doctrines (developed to address emerging transportation technologies) to a case involving an ancient form of personal injury?

Part II analyzes this apparent discrepancy and concludes that the Exchequer's decision in Byrne is best understood as an effort to create the fairest outcome based on the particular facts of that case. This Part explores how the barons' solution--upholdinga presumption of negligence in favor of the plaintiff--constituted a logical extension of prior rulings involving railroad and other common-carrier liability. Part II rests its conclusions on: (1) the attitudes and experiences of the two most prominent jurists in Byrne; (2) English case law preceding Byrne; and (3) contemporary treatises and other secondary sources from the mid-nineteenth century.

Part III positions this substantial-justice explanation for the birth of res ipsa loquitur within the larger historical narrative of nineteenth-century tort law. Several competing schools of thought exist to explain how negligence became the dominant theory of tort liability during the nineteenth century. To some scholars, negligence arose in response to the Industrial Revolution because it provided a rigorous, and therefore less costly, standard of liability for powerful but still emerging industries to hide behind in avoiding fault. (12) Other commentators maintain that nineteenth-century developments in torts were driven by intellectual trends, such as expanding notions of causation or efforts to make the legal profession more "scientific" through standardization of principles and education. (13)

A third school takes a more pragmatic approach, viewing growth in tort law as having been driven not by economics or ideas alone but rather by a combination of influences. Proponents of this approach recognize an effort by nineteenth-century jurists to hold business interests accountable for injuries caused by their machines, even as industrial accidents proliferated and industrialists came to dominate Anglo-American government and society. This school interprets developments in the law that created heightened-liability obligations for certain parties as a middle ground between competing standards of negligence and strict liability. According to these scholars, nineteenth-century courts adopted hybrid approaches to tort liability as a means of holding industry accountable without creating unmanageable standards of liability. (14)

This Note argues that the introduction of res ipsa loquitur in 1863 supports this third explanation for the progression of tort law. The judges who decided Byrne v. Boadle were clearly uninterested in giving quarter to a merchant and his business when doing so would leave an innocent pedestrian uncompensated for his injuries. Given the opportunity to limit the scope of heightened liability to cases involving railroad or stagecoach passengers, the Court of Exchequer declined to do so and instead recognized a presumption of negligence outside the common-carrier...