Rolling the 'barrel' a little further: allowing res ipsa loquitur to assist in proving strict liability in tort manufacturing defects.

• Author: Johnson, Matthew R.

In England in 1863, a barrel of flour rolled out of the second floor of a barn, struck a passerby walking underneath, and, as William Prosser said, rolled "into the lives of all tort lawyers."(1) Faced with this wayward barrel, the English court crafted the now-famous tort doctrine of res ipsa loquitur.(2) The court held that the peculiar circumstances of the accident generated a presumption of negligence, allowing recovery even though the plaintiff could not prove negligence directly.(3) One hundred years later, Chief Justice Traynor of the California Supreme Court ushered in a new liability scheme, holding a manufacturer of a power tool strictly liable in tort for a defective product without requiring any showing of fault on the part of the manufacturer.(4)

Res ipsa loquitur and strict liability in tort for defective products may appear to be distinct legal constructs, yet both spring from the same doctrinal foundation in that they assist plaintiffs in establishing liability when direct proof is beyond their reach.(5) Res ipsa loquitur, as embraced by modern American courts, allows the court to infer a defendant's negligence absent clear proof of negligent conduct.(6) Strict liability abandons a conduct-based approach, instead allowing a plaintiff to recover by showing that a product was defective and unreasonably dangerous when it left the manufacturer.(7) An early products liability case decided by the California Supreme Court highlighted the similarities that exist between these two important tort doctrines.(8)

In the early 1940s, Gladys Escola, a waitress, was transferring Coca-Cola bottles from a shipping carton into the refrigerator when one of the bottles exploded, cutting her hand severely.(9) She sued the bottling company for negligence and, relying on the doctrine of res ipsa loquitur, prevailed before the trial court and the California Court of Appeals.(10)

Chief Justice Gibson, writing for the California Supreme Court, affirmed the lower courts' decisions.(11) More importantly, the language of his opinion highlighted the similarities that exist between res ipsa loquitur and strict products liability. Chief Justice Gibson engaged in a two-part analysis.(12) He first determined that because the bottle was not damaged "after delivery to the restaurant by the defendant ... it follow[ed] ... that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled."(13) He then noted that the defendant could have been negligent in two different ways: either the defendant overcharged a safe bottle or failed to discover a properly charged but defectively made bottle.(14) The Chief Justice concluded that sufficient evidence existed for a jury to infer that a defect existed in the bottle and to infer further that the defendant's conduct was negligent.(15)

Then-justice Traynor concurred in the judgment.(16) Traynor argued that strict liability, not res ipsa loquitur, should be used to establish negligence for any injury caused by a product defect.(17) He noted that negligence approached strict liability because, procedurally, the jury was left with the ultimate power to determine whether the defendant had refuted the inference of negligence.(18) Traynor's concurrence suggested that both doctrines, res ipsa loquitur and the strict liability system that he envisioned, should be available to aid the plaintiff in establishing the cause of the injury.(19) He favored a strict liability system because some causes of accidents cannot be attributed to negligence "even by the device of res ipsa loquitur,"(20) and the ability to determine the cause of the defect should not control whether a plaintiff could recover.(21) Justice Traynor's espousal of a strict liability system, therefore, rested at least in part on the same premise as the English court's decision one hundred years earlier to create the doctrine of res ipsa loquitur; namely, a legal recovery on account of injury should not be barred by lack of proof when the defendant has better knowledge or access to knowledge regarding the cause of the accident.(22)

Despite the similar purposes of the strict liability and res ipsa loquitur doctrines, confusion exists over whether to allow res ipsa loquitur to play a role in proving a product defect in a strict liability claim. Louisiana and several other states have recognized the utility of res ipsa in a strict liability setting.(23) Other states, such as California, have rejected the cross-application of the doctrine.(24)

This Note outlines the various state approaches to cross-application and proposes that res ipsa loquitur be available to plaintiffs who file manufacturing defect strict liability claims. More specifically, this Note proposes a substantively and procedurally modified res ipsa doctrine tailored to proving manufacturing defects and furthering the social policy goals inherent in the strict products liability system.

The first section of this Note traces the historical evolution of res ipsa loquitur and strict products liability. The res ipsa loquitur discussion focuses on the several variations of the test that courts require plaintiffs to meet in order to qualify for a res ipsa loquitur instruction, as well as the varying procedural effects courts historically have given the doctrine. The strict products liability discussion traces the development of the strict liability tort doctrine and outlines the differing state approaches to strict products liability.

The second section of this Note begins by briefly discussing the existing commentary regarding the applicability of res ipsa loquitur in a strict products liability claim. The section then outlines approaches states have taken regarding whether the doctrine of res ipsa loquitur can be used to prove defect under a strict products liability theory. The section discusses the states that allow the doctrine to be employed, as well as the states that clearly have restricted the use of the doctrine to negligence theory. It also analyzes state court opinions that have embraced or rejected only implicitly the use of res ipsa in strict liability claims.

The third section of this Note briefly outlines the traditional policy rationales for strict products liability. This section then critiques the various state approaches to the question, and in so doing briefly touches on some of the policy bases for the proposal outlined in the final section of the Note.

Finally, this Note proposes that res ipsa loquitur be allowed to assist in proving manufacturing defects in a strict liability claim under a new two-tiered presumption analysis tailored for strict products liability settings. This proposal is consistent with the policy goals justifying the imposition of strict liability for manufacturing defects and will further those goals by making strict products liability for manufacturing defects more strict.

THE HISTORICAL DEVELOPMENT OF RES IPsA Loquitur AND STRICT PRODUCTS LIABILITY

Res Ipsa Loquitur

Res ipsa loquitur, or "the thing speaks for itself," is a species of circumstantial evidence developed at common law to help a plaintiff prove negligence.(25) The English roots of the doctrine are easily summarized. In Byrne v. Boadle,(26) the court found the defendant negligent under the principle of res ipsa loquitur even though the plaintiff could not prove affirmatively that negligent conduct caused the barrel to fall.(27) The court concluded that, when such an accident occurs, the mere happening of the event presupposes negligence.(28) Two years later, Chief Justice Erle, in Scott v. London & St. Katherine Docks Co.,(29) articulated the doctrine of res ipsa loquitur fully by holding:

There must be reasonable evidence of negligence. But where the

thing is sh[o]wn to be under the management of the defendant or his

servants, and the accident is such as in the ordinary course of things

does not happen if those who have the management use proper care, it

affords reasonable evidence, in the absence of explanation by the

defendants, that the accident arose from want of care.(30)

Thus, the doctrine gives the plaintiff the ability to prove negligence when the specific facts necessary to prove negligence are unavailable.

In the United States, almost every state has embraced the doctrine of res ipsa loquitur.(31) The traditional view in the United States has been that for a plaintiff to use the doctrine successfully, the plaintiff must prove that (1) the event is not one that normally occurs absent negligence, (2) the event is attributable to an agency or instrumentality within the defendant's exclusive control, and (3) the plaintiff has not voluntarily contributed to the accident-causing event.(32) The Restatement (Second) of Torts test for res ipsa loquitur is similar to the traditional view but does not require that the defendant have exclusive control over the instrumentality.(33) Court opinions in eight states have indicated some support for the Restatement test,(34) and one other state court has commented favorably on the Restatement test even though the state does not officially recognize the res ipsa doctrine as outlined in the Restatement.(35) Some states have, at times, added a fourth requirement to the Restatement test: that explanatory evidence be more readily accessible to the defendant than to the plaintiff.(36) This element has not been applied uniformly even among states embracing the fourth element.(37)

Courts in the United States have varied the procedural effect of res ipsa loquitur over time.(38) Initially, courts followed the English rule that proving the elements of the doctrine created a legal presumption of negligence, shifting the burden of proof to the defendant to prove himself free of negligence.(39) Currently, state courts are split regarding the procedural effect of res ipsa loquitur. The majority view...