Tort of the Week: Samson v. Reising (1974)

This week in Torts, we encounter our first Latinate doctrine: res ipsa loquitur. (Appx: The thing speaks for itself.) In res cases, the mere fact of the accident is taken as evidence of negligence.

Res ipsa loquitur allows an injured plaintiff to claim a common-sense inference of negligence when direct evidence of negligence is lacking. The res ur-case is Byrne v. Boadle, Court of Exchequer, 1863, in which the plaintiff was NOT required to give affirmative proof of negligence after being hit by a barrel of flour falling out of a flour warehouse. In the verdict, an exasperated Chief Baron Pollock says, "A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse...seems to me preposterous. * * * The present case upon the evidence comes down to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour." (This kind of repetition is common when people start trying to explain res. The thing speaks for itself, so it's hard to say anything else about it. You just keep saying the thing over and over again: "Flour, dammit! Don't you see? Flour! Duh!!")

Res doctrine now requires that the plaintiff introduce evidence to prove four things:

1. That the accident happened.
2. Via an instrumentality in the defendant's "exclusive control."
3. That the accident is something that does not usually happen without negligence by someone.
4. That he himself was not at fault.

In Ybarra v. Spangard (1944), the doctrine was extended to allow a patient in a medical malpractice case to bring a res action against his surgeon, the nurses, the anaesthesiologist, and the hospital after the patient suffered permanent nerve damage to his shoulder during an appendectomy. Although clearly the instrumentality was not under the control of any one defendant, the California Supreme Court reasoned that to prevent the patient from pursuing his case under res would be to deny any relief to patients injured while unconscious. Another important policy reason is that a res case gives the plaintiff some leverage to get the truth out of parties who might otherwise stonewall.

OK, now I think we're set up for the Tort of the Week, as usual, from Prosser.

Nine members of the Wauwatosa High School Band Mothers individually cooked turkeys in their own homes from which turkey salad was made at a church kitchen by some of them. Plaintiff ate the turkey salad and suffered food poisoning.

Does res ipsa loquitur apply?

Let's walk through the factors:

1. Yes, the accident happened.
2. Instrumentality was not under any one defendant's exclusive control, but that was also true in Ybarra.
3. I'd say that food poisoning generally doesn't happen without negligence by someone.
4. We weren't given any evidence pertaining to the plaintiff's fault, so I'm going to assume it's not at issue.

My prediction: The court will find some way to distinguish the case from Ybarra and will not allow the plaintiff to use res ipsa loquitur. This may hinge on the fact that it's not a medical malpractice case, or it may hinge on the fact that the possible negligent act could have been done by so many essentially unrelated parties. I'm thinking the second. Part of the rationale in Ybarra was based on getting the surgeons/nurses/anaesthesiologists to rat out the guilty party, and the parties here aren't in a position to have any knowledge of each other's negligent acts. Directed verdict for the defendant.

[Pause to look it up on LexisNexis (62 Wis.2d 698), still my favorite database despite the obscene water bottle.]

What actually happened:

Trial court: Directed verdict for the defendant.

Wisconsin Supreme Court: Affirms trial court.

Rationale: Too many defendants and no real connection between them.

And from Prosser, we learn that "Courts have applied res ipsa loquitur against multiple defendants outside the medical context in only a handful of cases."