When Negligence Can Be “Presumed” in California

Author: Nicole Lenat

Res Ipsa Loquitur” is a Latin phrase which many attorneys may remember from their law school days.  It literally translates to, “the thing speaks for itself.”  In California personal injury cases, this doctrine applies when evidence cannot necessarily be shown to determine if there was negligence, but the facts and circumstances surrounding an injury show that the person hurt would not normally be harmed in the manner in which they were in the absence of a negligent act.  In other words, where the accident giving rise to injury is probably the result of someone’s negligence because such things usually do not happen without someone’s negligence, then the trier of fact (judge or jury) may infer that negligence occurred.  Under these circumstances, the burden is shifted to the defendant to show evidence to the contrary. Brown v. Poway Unified School District (1993) 4 Cal.4th 820.

The law is set forth in California Evidence Code §646 as follows:

“(b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.

(c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:

  1.  If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and
  2. The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.”

In California, courts apply a three-prong test for applying the presumed negligence doctrine.  The test was established in the case of Newing v. Cheatham (1975) 15 C3d 351, 359, 124 CR 193, 199.  To presume a negligent act, the following prongs must be met:

  • That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;
  • That the accident was caused by an agency or instrumentality within the defendant’s exclusive control; and
  • That the accident was not due to any voluntary action or contribution on plaintiff’s part. [Newing v. Cheatham (1975) 15 C3d 351, 359, 124 CR 193, 199; also see California Civil Jury Instruction 417].

In determining whether these conditions are satisfied, the trier of fact may consider common knowledge, expert witness testimony, and the circumstances relating to the particular accident in issue. 

Cases where a judge would allow a jury instruction that negligence is presumed are rare.  However, as defense counsel in personal injury matters, it is important to be aware of this doctrine and how it is applied.  Most commonly, the res ipsa loquitur presumption is applied in product liability cases.  In those cases, courts are more likely to find that when products explode or break upon normal use, the product was in the exclusive control of the manufacturer and/or distributor and would not have exploded or broken absent negligence in the manufacturing or distribution of the product.  The doctrine is also applied in cases of medical malpractice – such as leaving an instrument inside of a patient during surgery.

ABOUT THE AUTHOR: Nicole Hermanson is a graduate of Pepperdine University School of Law. She focuses on products liability and business litigation. Contact her at NHermanson@tysonmendes.com.

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