California Civil Jury Instructions (CACI)
518. Medical Malpractice: Res ipsa loquitur
[Name of plaintiff] may prove that [name of defendant]’s negligence caused [his/her] harm if [he/she] proves all of the following:
1. That [name of plaintiff]’s harm ordinarily would not have occurred unless someone was negligent; [In deciding this issue, you must consider [only] the testimony of the expert witnesses.]
2. That the harm occurred while [name of plaintiff] was under the care and control of [name of defendant]; and
3. That [name of plaintiff]’s voluntary actions did not cause or contribute to the event[s] that harmed [him/her].
If you decide that [name of plaintiff] did not prove one or more of these three things, then you must decide whether [name of defendant] was negligent in light of the other instructions I have read.
If you decide that [name of plaintiff] proved all of these three things, you may, but are not required to, find that [name of defendant] was negligent or that [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s harm, or both.
[Name of defendant] contends that [he/she/it] was not negligent or that [his/her/its] negligence, if any, did not cause [name of plaintiff] harm. If after weighing all of the evidence you believe that it is more probable than not that [name of defendant] was negligent and that [his/her/its] negligence was a substantial factor in causing [name of plaintiff]’s harm, you must decide in favor of [name of plaintiff]. Otherwise, you must decide in favor of [name of defendant].
New September 2003; Revised December 2011
Directions for Use
The first paragraph of this instruction sets forth the three elements of res ipsa loquitur. The bracketed sentence in element 1 should be read only if expert testimony is introduced. The word “only” within that sentence is to be used if the court has determined that the issue of the defendant’s negligence involves matters beyond common knowledge.
The second paragraph explains that if the plaintiff fails to establish res ipsa loquitur as a presumption, the jury may still find for the plaintiff if it finds based on its consideration of all of the evidence that the defendant was negligent. (See Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163–1164 [117 Cal.Rptr.3d 126].)
If the plaintiff has established the three conditions that give rise to the doctrine, the jury is required to find that the accident resulted from the defendant’s negligence unless the defendant comes forward with evidence that would support a contrary finding. (See Cal. Law Revision Com. comment to Evid. Code, § 646.) The last two paragraphs of the instruction assume that the defendant has presented evidence that would support a finding that the defendant was not negligent or that any negligence on the defendant’s part was not a proximate cause of the accident. In this case, the presumption drops out, and the plaintiff must then prove the elements of negligence without the benefit of the presumption of res ipsa loquitur. (See Howe, supra, 189 Cal.App.4th at pp. 1163–1164; see also Evid. Code, § 646(c).)
Sources and Authority
- Evidence Code section 646(c) provides:
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.
- Evidence Code section 604 provides: “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”
- “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ The presumption arises when the evidence satisfies three conditions: ‘ “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ A presumption affecting the burden of producing evidence ‘require[s] the trier of fact to assume the existence of the presumed fact’ unless the defendant introduces evidence to the contrary. The presumed fact, in this context, is that ‘a proximate cause of the occurrence was some negligent conduct on the part of the defendant. . . .’ If the defendant introduces ‘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 trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825–826 [15 Cal.Rptr.2d 679, 843 P.2d 624], internal citations omitted.)
- “ ‘The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161.)
- “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial evidence of negligence is sufficient.’ ” (Howe, supra, 189 Cal.App.4th at p. 1161, internal citation omitted.)
- The doctrine “is based on a theory of ‘probability’ where there is no direct evidence of defendant’s conduct, permitting a common sense inference of negligence from the happening of the accident.” (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75 [215 Cal.Rptr. 834].)
- “All of the cases hold, in effect, that it must appear, either as a matter of common experience or from evidence in the case, that the accident is of a type which probably would not happen unless someone was negligent.” (Zentz v. Coca Cola Bottling Co. of Fresno (1952) 39 Cal.2d 436, 442–443 [247 P.2d 344].)
- “In determining the applicability of res ipsa loquitur, courts have relied on both expert testimony and common knowledge. The standard of care in a professional negligence case can be proved only by expert testimony unless the conduct required by the particular circumstances is within the common knowledge of the layperson.” (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 [54 Cal.Rptr.2d 209], internal citations omitted.)
- “Under the doctrine of res ipsa loquitur and this common knowledge exception, it is proper to instruct the jury that it can infer negligence from the happening of the accident itself, if it finds based on common knowledge, the testimony of physicians called as expert witnesses, and all the circumstances, that the injury was more likely than not the result of negligence.” (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6 [23 Cal.Rptr.2d 86], internal citation omitted.)
- “The fact that a particular injury rarely occurs does not in itself justify an inference of negligence unless some other evidence indicates negligence. To justify res ipsa loquitur instructions, appellant must have produced sufficient evidence to permit the jury to make the necessary decision. He must have presented ‘some substantial evidence which, if believed by the jury, would entitle it to draw an inference of negligence from the happening of the accident itself.’ ” (Blackwell, supra, 46 Cal.App.4th at p. 944, internal citations omitted.)
- The purpose of the second “control” requirement is to “link the defendant with the probability, already established, that the accident was negligently caused.” (Newing v. Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr. 193, 540 P.2d 33].) The control requirement is not absolute. (Zentz, supra, 39 Cal.2d at p. 443.)
- “The purpose of [the third] requirement, like that of control by the defendant is to establish that the defendant is the one probably responsible for the accident. The plaintiff need not show that he was entirely inactive at the time of the accident in order to satisfy this requirement, so long as the evidence is such as to eliminate his conduct as a factor contributing to the occurrence.” (Newing, supra, 15 Cal.3d at p. 363, internal citations omitted.)
- The third condition “should not be confused with the problem of contributory negligence, as to which defendant has the burden of proof. . . . [I]ts purpose, like that of control by the defendant, is merely to assist the court in determining whether it is more probable than not that the defendant was responsible for the accident.” (Zentz, supra, 39 Cal.2d at p. 444.)
- “[Evidence Code section 646] . . . classified the doctrine as a presumption affecting the burden of producing evidence. Under that classification, when the predicate facts are established to give rise to the presumption, the burden of producing evidence to rebut it shifts to the defendant to prove lack of negligence or lack of proximate cause that the injury claimed was the result of that negligence. As a presumption affecting the burden of producing evidence (as distinguished from a presumption affecting the burden of proof), if evidence is presented to rebut the presumed fact, the presumption is out of the case—it ‘disappears.’ But if no such evidence is submitted, the trier of fact must find the presumed fact to be established.” (Howe, supra, 189 Cal.App.4th at p. 1162.)
- “ ‘If evidence is produced that would support a finding that the defendant was not negligent or that any negligence on his part was not a proximate cause of the accident, the presumptive effect of the doctrine vanishes.’ ‘[T]he mere introduction of evidence sufficient to sustain a finding of the nonexistence of the presumed fact causes the presumption, as a matter of law, to disappear.’ When the presumptive effect vanishes, it is the plaintiff’s burden to introduce actual evidence that would show that the defendant is negligent and that such negligence was the proximate cause of the accident.” (Howe, supra, 189 Cal.App.4th at p. 1163, internal citations omitted.)
- “As the [Law Revision Commission] Comment [to Evidence Code section 646] explains, even though the presumptive effect of the doctrine vanishes, ‘the jury may still be able to draw an inference that the accident was caused by the defendant’s lack of due care from the facts that gave rise to the presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be warranted from all of the evidence in the case even though the plaintiff fails to establish all the elements of res ipsa loquitur. In appropriate cases, therefore, the jury may be instructed that, even though it does not find that the facts giving rise to the presumption have been proved by a preponderance of the evidence, it may nevertheless find the defendant negligent if it concludes from a consideration of all the evidence that it is more probable than not that the defendant was negligent.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163, internal citation omitted.)
- “It follows that where part of the facts basic to the application of the doctrine of res ipsa loquitur is established as a matter of law but that others are not, the court should instruct that application of the doctrine by the jury depends only upon the existence of the basic facts not conclusively established.” (Rimmele v. Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr. 39].)
1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions, §§ 114–118
3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.32 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.50 (Matthew Bender)