The law of falling objects: Byrne v. Boadle and the birth of res ipsa loquitur.

 
INTRODUCTION 
I. THE CASE OF BYRNE V. BOADLE 
II. THE ORIGINS OF BYRNE V. BOADLE AND RES IPSA LOQUITUR 
     A. The Classical Law of Falling Objects 
     B. The Roots of Presumptive Negligence 
     C. The Barons: Linking Byrne and Presumptive Negligence 
        1. Pollock, C.B. 
        2. Bramwell, B. 
III. PLACING BYRNE AND RES IPSA LOQUITUR IN THE HISTORICAL NARRATIVE 
     OF TORTS 
CONCLUSION 

INTRODUCTION

In Latin, the phrase res ipsa loquitur means "the thing speaks for itself." In the law, few concepts have created more confusion among scholars and practitioners than the evidentiary doctrine of res ipsa loquitur. Commentators have attempted to characterize the phrase alternatively as a rule, principle, doctrine, maxim, and for one particularly frustrated scholar, a myth. (1) Likewise, res ipsa loquitur has resisted all attempts by legal authorities to delineate its scope. In the words of another eminent, but exasperated, scholar, res ipsa loquitur "is used in different senses[;] ... it means inference, it means presumption, it means no one thing--in short it means nothing." (2) Nonetheless, the maxim has appeared in thousands of cases since its first articulation in the mid-nineteenth century and shows no signs of leaving the legal lexicon. The most widely accepted interpretations of res ipsa loquitur include (3): (1) that it creates a permissible inference of negligence for a jury in situations where a plaintiff can only show that an injurious event occurred; (2) that it presents a rebuttable presumption requiring a jury to find for a plaintiff in the absence of exculpatory evidence from the defendant; or (3) that it forces an affirmative shift in the burden of proof from plaintiff to defendant. (4)

Abundant scholarship exists debating the nature of res ipsa loquitur, due in large part no doubt to the deep ambiguities that continue to shroud the doctrine. Perhaps the only aspect of res ipsa loquitur which has not spawned heated intellectual and juridical debate has been the doctrine's origin. The minimal historical inquiry into res ipsa's roots may be related to the unambiguous and overt way in which the phrase "res ipsa loquitur" entered the English common law of torts.

Nearly all commentators agree that the first use of the colloquial Latin tag in the negligence context came in the 1863 case of Byrne v. Boadle, in which a Liverpool flour merchant was sued by a pedestrian who had been struck and seriously injured by a barrel plummeting from the merchant's second-story storeroom. (5) The case came before the common law Court of Exchequer on appeal, and the court's head, Chief Baron Jonathan Frederick Pollock, favoring the plaintiff despite his inability to present affirmative evidence of the defendant's negligence, observed that "[t]here are certain cases of which it may be said res ipsa loquitur, and this seems one of them." (6) In context, Pollock's choice of Latin phraseology was more a gilded bauble of his classical education at Cambridge than a conscious attempt to generate a new legalism; however, subsequent jurisprudence soon minted Pollock's words into legal coinage. (7)

Rarely has the first use of a well-known legal phrase been so clearly traceable to an individual case. Res ipsa loquitur's enticingly straightforward entry into the language of the common law has lulled not a few authors into dashing off cursory accounts of its beginnings and may explain the paucity of historical investigation into the doctrine's roots. (8) It would be ironic indeed if commentators were to presume that the doctrine's past speaks for itself.

Not all res ipsa expositors have ignored the search for historical antecedents. Several have asserted that the presumption of negligence allowed under the res ipsa doctrine can be viewed as an outgrowth of the higher standards of care imposed on common carriers during the first half of the nineteenth century. (9) This line of reasoning merits consideration. Enterprise liability was the main arena for doctrinal expansion in tort law during the nineteenth century, and the vast majority of case law cited in Byrne and its immediate progeny involved common-carrier liability.