Using the doctrine of res ipsa loquitur, courts have accounted for the fact that there may be instances where a plaintiff is unable to present any evidence of a specific negligent act or omission and yet where the injury to the plaintiff and the surrounding circumstances suggest that the defendant did in fact negligently cause the injury. Despite the fact that the doctrine of res ipsa has been well-accepted by American courts, the courts have struggled to appropriately formulate the doctrine so as to achieve its important purpose of allowing recovery in appropriate situations while not formulating it so broadly as to enable recovery where there is no evidence that the defendant acted negligently. The various formulations of the res ipsa loquitur doctrine found in the case law as well as in the Restatement (Second) of Torts and the Restatement (Third) of Torts illustrate the difficulty of formulating the doctrine appropriately. In this note, I argue that the Restatement Second succesffuly balanced the policy concerns underlying res ipsa loquitur with the real-life consideration that a plaintiff, although she may have suffered serious injuries, ought not be able to invoke the doctrine unless she has sufficiently implicated the relevant defendant as the party responsible for her injuries. I then take a critical look at the Restatement Third which has turned the doctrine of res ipsa into a pure statistical probability test by eliminating portions of the doctrine that served as necessary safeguards for preventing liability where there is no evidence linking a defendant to the injury. As a result, I conclude that courts should not accept, adopt, or utilize the formulation of res ipsa found in the Restatement Third.
Daniel J. Pylman,
Res Ipsa Loquitur in the Restatement (Third) of Torts: Liability Based upon Naked Statistics Rather than Real Evidence,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss3/15