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A Phrase in Latin: Res Ipsa Loquitur

Circumstantial evidence is commonly used in proving all sorts of tort cases. The plaintiff offers evidence of a pile of freshly cut maple logs in the defendant’s backyard to establish that the defendant cut down his maple trees. Scratches or paint scrapings on the defendant’s fender are offered to establish that it was his car that hit the plaintiff’s. Evidence of large, unexplained deposits in defendant’s bank account is offered to establish that he converted the plaintiff’s funds. In each case, evidence of one fact is offered because it tends to establish another.

The “banana peel cases” offer a classic example of the use of circumstantial evidence to establish negligence. The plaintiff slips on a banana peel on the supermarket floor, and sues for his injuries. To establish negligence, he must show that the banana peel was there long enough that store employees should have seen and removed it. It would be ideal to introduce direct evidence, say, three customers who saw it on the floor over the course of several hours before the accident. Such direct evidence isn’t likely to be available, however. If three customers had seen it, one would likely have told someone about it, or picked it up. (Similarly, in the Maserati case, if another customer had seen the lug nuts left off, he would likely have said something to the mechanic and averted the accident.)

Absent such direct evidence, banana peel plaintiffs usually offer circumstantial evidence to prove that the banana peel was on the floor long enough that store employees should have seen and removed it. The plaintiff will testify that the banana peel was black, or gritty, or trampled flat. From such facts, a jury could reason as follows: Most people don’t hold onto old banana peels; they throw them away immediately after eating the banana. Therefore, if a black and gritty banana peel was on the floor, it was probably on the floor long enough to turn black and gritty. Common experience suggests that this takes an hour or so, and that’s long enough that an employee should have found it and picked it up. Similarly, if the banana peel had been trampled, the jury could infer that it had been stepped on repeatedly over a period of time. Such evidence does not exactly provide an airtight case, but it will often be the best that the plaintiff can do, and may well convince a jury that it is “more probable than not” that the defendant was negligent.


If circumstantial evidence is one step away from direct testimony, the classic doctrine of res ipsa loquitur is a further step beyond the traditional use of circumstantial evidence. The doctrine originated in the famous case of Byrne v. Boadle, 159 Eng. Rep. 299 (1863), in which the unfortunate plaintiff was hit on the head by a flour barrel which fell from the defendant’s second-story window. While there was no evidence of what caused the flour barrel to fall on Byrne’s boodle, the court allowed him to recover. “Res ipsa loquitur,” the court opined, “the thing speaks for itself.”

Dean Prosser offers the following whimsical response to this tautological logic: “res ipsa loquitur, sed quid in infernos dicet?” (“The thing speaks for itself, but what the hell did it say?”) Schwartz, Kelly & Partlett at 247 (12th ed.). Well, the Byrne judges took it to say that flour barrels don’t just fall out of windows on their own; that when they do fall, the most likely reason is the negligence of the person in control of the premises. Thus, even though the plaintiff cannot offer direct or circumstantial evidence of exactly what caused the barrel to fall, he should be allowed to reach the jury on the issue of negligence by proving the circumstances of the accident itself, because they “bespeak negligence” even without a more specific showing of the chain of events.

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