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WPI 22.01 Res Ipsa Loquitur—Inference of Negligence

6 WAPRAC WPI 22.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 22.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part III. Issues—Burden of Proof
Chapter 22. Burden of Proof—Res Ipsa Loquitur
WPI 22.01 Res Ipsa Loquitur—Inference of Negligence
If you find that:
(1) the [accident] [or] [occurrence] producing the [injury] [damage] is of a kind that ordinarily does not happen in the absence of someone's negligence; [and]
(2) the injury was caused by an agency or instrumentality within the exclusive control of the defendant; [and]
[(3) the injury-causing [accident] [or] [occurrence] was not due solely to a voluntary act or omission of the plaintiff;]
then, in the absence of satisfactory explanation, you may infer, but you are not required to infer, that the defendant was negligent [and that such negligence produced the [injury] [damage] complained of by the plaintiff].
This instruction is for use in a case in which all of the elements of res ipsa loquitur are supported by substantial evidence and the judge determines that the jury should be instructed on the inference of negligence. See discussion in the Comment.
WPI 1.03 (Direct and Circumstantial Evidence) should always be used along with this instruction.
Use bracketed material as applicable. The bracketed third element will rarely be used; see discussion in the Comment.
Revised instruction. The instruction was revised in 2010 to use language from Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003). The Pacheco language will be easier for lay jurors to understand. The revisions to the pattern instruction include adding the phrase “of a kind” to the first element and adding the bracketed third element. The third element is discussed below.
Application. Res ipsa loquitur (“the thing speaks for itself”) provides a permissive inference of negligence to be drawn by the factfinder in certain cases. Curtis v. Lein, 169 Wn.2d 884, 889, 239 P.3d 1078, 1081 (2010). Whether the doctrine can be used in a given case is a question of law. Curtis v. Lein, 169 Wn.2d at 889; Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003). The doctrine is “ordinarily sparingly applied, ‘in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential.’” Curtis v. Lein, 169 Wn.2d at 889; Tinder v. Nordstrom, Inc., 84 Wn.App. 787, 792, 929 P.2d 1209 (1997). After the judge decides the initial question of law, the jurors decide whether the inference should be drawn. Pacheco v. Ames, 149 Wn.2d at 436; Robison v. Cascade Hardwoods, Inc., 117 Wn.App. 552, 563, 573–74, 72 P.3d 244 (2003). When each of the elements of res ipsa loquitur is supported by substantial evidence, the plaintiff is entitled to an instruction on this doctrine. See Pacheco v. Ames, 149 Wn.2d at 444.
Elements. The functioning of the doctrine has been explained in these terms:
The doctrine of res ipsa loquitur spares the plaintiff the requirement of proving specific acts of negligence in cases where a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant were not negligent. In such cases the jury is permitted to infer negligence. The doctrine permits the inference of negligence on the basis that the evidence of the cause of the injury is practically accessible to the defendant but inaccessible to the injured person.
Pacheco v. Ames, 149 Wn.2d at 436 (citations omitted).
The Washington Supreme Court has enumerated three essential elements for res ipsa loquitur to apply:
A plaintiff may rely upon res ipsa loquitur's inference of negligence if (1) the accident or occurrence that caused the plaintiff's injury would not ordinarily happen in the absence of negligence, (2) the instrumentality or agency that caused the plaintiff's injury was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the accident or occurrence.
Curtis v. Lein, 169 Wn.2d at 891 (citing Pacheco v. Ames, 149 Wn.2d at 436).
A more detailed discussion of the doctrine and representative cases can be found in DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 2.43 (4th ed.).
First element. The first element may be established in three circumstances:
The first element is satisfied if one of three conditions is present: “(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries.”
Curtis v. Lein, 169 Wn.2d at 891 (citations omitted).
Substantial evidence as to the first element may be provided by an expert's testimony that the damage or injury ordinarily does not occur in the absence of negligence; if substantial evidence also supports the other two elements, then the plaintiff is entitled to a jury instruction on res ipsa loquitur. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wn.2d 12, 19–22, 499 P.2d 1 (1972); Brown v. Dahl, 41 Wn.App. 565, 582–83, 705 P.2d 781 (1985) (reversing the trial court's refusal to instruct on res ipsa loquitur when all three elements were supported by substantial evidence).
Second element. The crux of the second element is the exclusivity of the defendant's control rather than the pinpointing of the precise agency or instrumentality involved. Restatement (Second) of Torts § 328D (1965). In some cases, the instrumentality is clear, as with the collapsing dock in Curtis or the oral surgeon's drilling on the wrong side in Pacheco. In other cases, the nature of the instrumentality is less clear, but the defendant's exclusive control is clear. Horner v. N. Pac. Beneficial Ass'n Hosps., Inc., 62 Wn.2d 351, 360, 382 P.2d 518 (1963) (res ipsa loquitur applicable when hospital employed surgical team and patient awakened from abdominal surgery with paralyzed arm.)
Exclusive control includes situations when the defendant has the right of control, as in a principal-agent relationship, or a non-delegable duty, as well as when the defendant has actual physical control of the agency or instrumentality. Hogland v. Klein, 49 Wn.2d 216, 219, 298 P.2d 1099 (1956) (“Legal control or responsibility for the proper and efficient functioning of the instrumentality which caused the injury and a superior, if not exclusive, position for knowing or obtaining knowledge of the facts which caused the injury provide a sufficient basis for application of the doctrine.”); Horner v. N. Pac. Beneficial Ass'n Hosps., Inc., 62 Wn.2d 351, 382 P.2d 518 (1963).
“However, exclusive control is not established merely by showing that the defendant has a superior ability to investigate and possibly determine causation.” Tinder v. Nordstrom, Inc., 84 Wn.App. 787, 795, 929 P.2d 1209 (1997). When there is shared responsibility for a task, there can be shared “exclusive control.” See Ripley v. Lanzer, 152 Wn.App. 296, 319–23, 215 P.3d 1020 (2009) (because operating room nurses and surgeons share responsibility for condition and location of the surgical instruments before and after they are used, “control” element may be satisfied as to both defendant surgeon and defendant hospital for piece of broken scalpel left in patient after surgery).
The issue may arise as to whether res ipsa loquitur applies when one of several independent defendants must have had exclusive control of the instrumentality at the time of the occurrence, but plaintiff cannot prove which one. The courts are split on whether the doctrine can apply in this circumstance. Prosser and Keeton on Torts, at 251 (5th ed. 1984). Courts that have allowed res ipsa loquitur in this circumstance have done so primarily in the setting of a surgical operation under anesthesia. The rationale is that the defendants are the only ones in a position to know what happened when the plaintiff is under anesthesia, and they are unlikely to come forward and testify as to which health care provider made the mistake. See Ybarra v. Spangard, 25 Cal.2d 486, 490, 154 P.2d 687 (1944). No Washington case has directly decided this issue.
Third element. The WPI Committee added the third element because the element is routinely included in case law statements of the elements. The element appears in brackets, however, because it will rarely be needed in a jury instruction. Several reasons underscore this point. “[T]he advent of comparative fault should logically eliminate the element of the absence of the plaintiff's contribution to the accident from the doctrine, unless the plaintiff's negligence appears to be the sole proximate cause of the event.” Tinder v. Nordstrom, Inc., 84 Wn.App. 787, 795 n.23, 929 P.2d 1209 (1997) (citing Prosser & Keaton on Torts, at 254 (5th ed. 1984)). Thus, the third element is often merged into the second. Tinder v. Nordstrom, Inc., 84 Wn.App. at 795; Marshall v. Western Airlines, 62 Wn.App. 251, 261, 813 P.2d 1269 (1991). See also DeWolf & Allen, 16 Washington Practice § 2.4 at n.25 (“so long as the plaintiff's fault does not affect the inference that the accident was probably caused (in part) by the defendant's negligence, this third element should be disregarded”).
In some cases, the third element is not needed in light of the instruction's subsequent phrase “in the absence of satisfactory explanation.” Finally, the third element is not needed unless it involves a material issue of fact that requires the jury's consideration. Most jurisdictions that have considered this issue have modified the third element by adopting the view that under the principles of comparative negligence, a plaintiff's contributory negligence does not bar reliance on the doctrine of res ipsa loquitur. See Emerick v. Raleigh Hills Hosp. (1982) 133 Cal.App.3d 575, 585–86, 184 Cal.Rptr. 92; Terrell v. Lincoln Motel, Inc., 183 N.J.Super. 55, 60–61, 443 A.2d 236, 239 (1982); Cramer v. Mengerhausen, 275 Or. 223, 228–29, 550 P.2d 740, 744 (1976).
Evidence of other possible explanations. When the defendant presents strong evidence of alternative non-negligent explanations for the occurrence, the plaintiff may still be entitled to an instruction on res ipsa loquitur. The Supreme Court in Curtis held:
The fact that the defendant may offer reasons other than negligence for the accident or occurrence merely presents to the jury alternatives that negate the strength of the inference of negligence res ipsa loquitur provides. The trial court therefore erred when it concluded that res ipsa loquitur was inapplicable as a matter of law due to the possibility that reasons other than negligence accounted for the dock's collapse.
Curtis v. Lein, 169 Wn.2d 884, 895, 239 P.3d 1078, 1084 (2010). Accord, Pacheco v. Ames, 149 Wn.2d 431, 440, 69 P.3d 324 (2003):
In particular, a res ipsa loquitur instruction should not be denied to a plaintiff when all of the elements for application of the doctrine are present although there is evidence offered to explain the incident. Even when the defendant offers weighty, competent and exculpatory evidence in defense, the doctrine may apply. (Citations omitted).
Evolution of the doctrine in the courts. The doctrine of res ipsa loquitur by its nature changes in its application over time as our scientific understanding of how things happen advances. An occurrence that might have been presumed to be due to negligence years ago may be explained today as caused by non-negligent factors. On the other hand, accidents or occurrences that were difficult to prevent years ago may be entirely preventable today absent negligence. This requires the trial court to look at cases individually and in the context of current knowledge.
[Current as of September 2018.]
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