Res Ipsa Loquitur in Aviation Litigation

The origins of the doctrine are traced back to Cicero’s defense of Milo in the 52 BCE speech, Pro Milone. Baron Pollack thereafter applied the doctrine for the first time in England in the widely taught torts case Byrne v. Boadle. 2 Hurl. & Colt. 722, 159 Eng. Rep. 299, 1863. In Byrne, a passerby was injured when a barrel of flour fell on him after it rolled out of a flour dealer’s warehouse. Id. The court determined that “it would be wrong to lay down as a rule that in no case can a presumption of negligence arise from fact of an accident.” Id. Instead, the court fashioned a rule—because the seemingly impossible ability to gather evidence of the negligence from warehouse employees in such a situation and because “a barrel could not roll out of a warehouse without some negligence”—that shifts the burden to the defendant to bring forward facts that indicate that there was no negligence. Id.

The doctrine continues to survive in U.S. common law. Relatively recently, a U.S. court described the purpose of the doctrine as “relieving the plaintiff of the burden of proving a specific act of negligence by the defendant when it is impossible for the plaintiff to determine the sequence of events, or when the defendant has superior knowledge or means of information to determine the cause of the accident.” Turbines, Inc. v. Dardis, 1 S.W.3d 726, 740 (Tex. App. 1999) (citing Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982)).

The most common modern-day version of the doctrine of res ipsa loquitur rests on three conditions derived from the Restatement (Second) of Torts § 328D. First, the accident must be of the kind that that would not have occurred in the absence of negligence. Restatement (Second) of Torts § 328D (1965). This condition merely draws from common experience and knowledge of the accident that occurred. Second, the accident must have been caused by an agency or instrumentality exclusively controlled by the defendant. Id. Third, the accident must not have been caused by any voluntary action by the plaintiff. Id.

Considering res ipsa loquitur’s purpose and three elements, one can easily envision the doctrine’s usefulness to plaintiffs in cases against common carriers or aircraft operators when, as is often repeated, “planes do not just fall out of the sky.” This is not to say, however, that the use of the doctrine in such a context is without challenge. This is because where “the accident might have happened from some cause other than the negligence of the defendant, the presumption . . . does not arise and the doctrine . . . cannot properly be applied.” Point-Du-Jour v. Am. Airlines, No. 07-CV-3371 KAM/RLM, 2009 WL 3756627 *5 (E.D.N.Y. Nov. 5, 2009).

The doctrine’s application in aviation cases is also complicated by the rule that prohibits the doctrine’s use where direct evidence of negligence is available. Because the doctrine is grounded on the plaintiff’s inability to obtain the direct evidence of negligence, some courts have found the doctrine unnecessary after the discovery of direct evidence, or circumstantial evidence that fully explains the cause of the accident. See Marsicano v. W. Coast Co., 561 N.Y.S.2d 528, 530 (N.Y. Sup. Ct. 1990) (finding that the plaintiff “would be permitted to present a theory of res ipsa loquitur in conjunction with specific negligence.”); Charnalia v. Piedmont Aviation, Inc., No. CIV. A. 89-1620-Z, 1990 WL 149985 *2 (D. Mass., Sept. 21, 1990); but see Widmyer v. Se. Skyways, Inc., 584 P.2d 1, 11 (Alaska 1978) (“Although there is a split of authority on whether the doctrine is applicable to cases in which the plaintiff introduces specific evidence of negligence, Alaska does not preclude use of the doctrine unless the specific acts furnish a 'complete explanation' of the accident.”); Justiss Oil Co., Inc. v. Monroe Air Ctr., L.L.C., 46 So. 3d 725, 728 (La. App. 2010) (“Res ipsa loquitur does not apply if there is sufficient direct evidence explaining the occurrence and establishing the details of the negligence alleged.”). This rule is often considered by courts to be a fourth element of the doctrine that requires that “a plaintiff must not be in a position to show the particular circumstance which caused the offending agency or instrumentality to operate his injury.” Capps v. Am. Airlines, Inc., 81 Ariz. 232, 303 P.2d 717 (1956). With today’s technology and aviation experts’ ability to re-create details of an accident with nothing more than cockpit recordings and radar plots, it may be less common where a plaintiff finds itself without direct evidence of the negligence causing an air disaster.

Another consideration in using the doctrine in the aviation context is against whom a plaintiff can apply it. Often, aviation accidents are not the result of a sole actor’s negligence, but rather result from a series of errors from manufacturers, maintenance providers, and/or air-traffic controllers. Because the doctrine requires that the defendant be in “exclusive control” of the instrumentality, it begs the question of how courts have defined this exclusivity. Some courts have held that rather than exclusivity, what is required is that it is more likely than not that the defendant was the responsible agent. See, e.g., Gerard v. Am. Airlines, Inc., 272 F.2d 35 (2d Cir. 1959) (noting that the requirement of “exclusive control” was not applied literally); see also Northwest Airlines v. Rowe, 226 F.2d 365 (8th Cir. 1955) (finding the doctrine applicable although there were competing theories as to who was in control and what instrumentality caused the accident). This allows for there to remain certain unknowns in whom or what was directly responsible for an accident.

Certain roles that are commonplace in aviation litigation are also shifted by use of the doctrine. While much of the traditional role of, or the burden placed on, an expert in aviation cases is eliminated through use of the doctrine, experts do continue to play a crucial part in res ipsa cases. Courts have held that a plaintiff cannot invoke the doctrine without expert testimony that proves the doctrine’s condition that “the accident would not occur without negligence.” See Charnalia v. Piedmont Aviation, Inc., No. CIV. A. 89-1620-Z, 1990 WL 149985 *2 (D. Mass., Sept. 21, 1990). This necessarily implies that an expert must still delve into the cause of the accident to some extent. Without doing so, it would be nearly impossible to define an accident as one resulting from negligence rather than one from an act of God or an act attributable to a non-defendant.

Similar to the aviation industry as a whole, the use of the doctrine in aviation cases has changed over time. In the beginning of the industry, the doctrine was nearly summarily rejected in cases in which it was raised. As courts and jurors became more familiar with the use of aircraft, the doctrine became more acceptable. Today, a major consideration in the decision to invoke the doctrine is the sophistication of jurors and the technology available to them. Asking jurors to render a plaintiff verdict without the traditionally expected evidence may not be as successful as in days past when jurors relied heavily and almost exclusively on the information provided to them during trial. Today, many people are more familiar with a wide array of subjects and court proceedings due to the advent of the Internet and courtroom television dramas and therefore demand a more sophisticated explanation into the causal factors of an accident. Nonetheless, when faced with an inexplicable tragedy, res ipsa may be a useful tool for a plaintiffs’ attorney to overcome seemingly insurmountable challenges in proving its case.

For a thorough examination of cases in which the doctrine of res ipsa loquitur was invoked in various aviation crash contexts, refer to 25 A.L.R. 4th 1237, Res Ipsa Loquitur in Aviation Accidents (1983).

Keywords: litigation, mass torts, negligence, aviation accident

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