December - 28th 2010

R.I.L is Not R.I.P

Res ipsa loquitur is the darling of first year law students studying torts. Negligence may be “inferred” in certain circumstances where an injury occurs in an unexplained way under circumstances wherein the injury would not in all probability have occurred absent the negligence of the defendant. As you might guess, res ipsa is paraded out regularly in difficult personal injury cases in the vain hope that in cases where breach of duty cannot be established through cogent direct or circumstantial evidence, all will not be lost. And it is just as routinely tossed out by courts on summary judgment.

O yea! O yea! Enter the Washington Supreme Court in Curtis v. Lein, 169 Wn. 2d 884 (July 2010). To a chorus of gasps from the insurance defense industry, the high court reversed the court of appeals and the trial court in a dock collapse case, applying the res ipsa loquitur doctrine in a premises liability case. The Court soundly rejected the previously bulletproof arguments that dispensed with res ipsa claims. The property owners, the Leins, argued (and the lower courts consistently agreed with this theme) that there are lots of reasons why a dock can collapse that have nothing to do with the negligence of the landowner, such as faulty construction. No way, said the Court. Res ipsa should create a general inference of negligence (including breach of duty and causation) and cannot be “parsed” into the component parts of a negligence claim. After all, the defendant is still free to rebut the inference.

The case merits close attention. There are ways the decision itself can be “parsed”, I suppose, but it looks to this reader like our trial courts are going to need a re-education on res ipsa because ‘Baby, here it comes.’