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Article Excerpt
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.
This Note expands on previous scholarship citing a connection between the emergence of an independent doctrine of res ipsa loquitur in the 1860s and earlier developments in enterprise liability. Existing inquiries have not delved deeply enough into the relationship between these two aspects of tort history. No account is dedicated exclusively, or even primarily, to charting the doctrinal developments out of which Byrne v. Boadle arose. (10) Most attempts to position res ipsa loquitur in historical context entertain doctrinal agendas. (ll) Furthermore, this scholarship suffers from omissions at both the factual level--lacking consideration of the judges, lawyers, and parties involved in individual cases like Byrne--and at the most abstract, theoretical levels--omitting linkages to the wider historical context within which tort and evidence law evolved during the nineteenth century.
The main purpose of this Note is to explore the factual and jurisprudential background of Byrne v. Boadle and to reexamine the case's founding role in the creation of the doctrine of res ipsa loquitur. Part I reviews the circumstances giving rise to the legal dispute between Mr. Byrne and Mr. Boadle and outlines the procedural history of the litigation as it wound its way from Liverpool's Scotland Road, to the local Court of Passage, and finally to the Court of Exchequer in London where Chief Baron Pollock delivered the fated phrase "res ipsa loquitur." This Part provides a factual foundation for understanding the place of Byrne v. Boadle, and res ipsa doctrine generally, in the history of tort law.
Part II of this work examines why the judges hearing Byrne v. Boadle in 1863 ruled unanimously in favor of plaintiff Joseph Byrne, finding he had met the proof requirements to sustain his action even though he could present no affirmative evidence of negligence on the part of either the defendant flour dealer or his employees. Even if one accepts the hypothesis that the doctrine of res ipsa loquitur grew out of higher standards of liability for common carriers and others operating under special duties during this period, the fact that Byrne v. Boadle is not an enterprise liability case distinguishes it from those cases where presumptions of negligence were imposed. It is further safe to presume (and will be affirmatively shown) that the effects of gravity, in the form of falling objects, had been a danger subject to legal regulation since classical times. The Byrne case seemingly lacked a novel legal quandary worthy of a novel legal solution. Consequently, both the Exchequer's heavy reliance on common-carrier cases in its opinion as well as subsequent scholarship identifying a link between res ipsa and enterprise liability appear suspect at first. Why would the Exchequer have extended one of its most current legal doctrines (developed to address emerging transportation technologies) to a case involving an ancient form of personal injury?
Part II analyzes this apparent discrepancy and concludes that the Exchequer's decision in Byrne is best understood as an effort to create the fairest outcome based on the particular facts of that case. This Part explores how the barons' solution--upholdinga presumption of negligence in favor of the plaintiff--constituted a logical extension of prior rulings involving railroad and other common-carrier liability. Part II rests its conclusions on: (1) the attitudes and experiences of the two most prominent jurists in Byrne; (2) English case law preceding Byrne; and (3) contemporary treatises and other secondary sources from the mid-nineteenth century.
Part III positions this substantial-justice explanation for the birth of res ipsa loquitur within the larger historical narrative of nineteenth-century tort law. Several competing schools of thought exist to explain how negligence became the dominant theory of tort liability during the nineteenth century. To some scholars, negligence arose in response to the Industrial Revolution because it provided a rigorous, and therefore less costly, standard of liability for powerful but still emerging industries to hide behind in avoiding fault. (12) Other commentators maintain that nineteenth-century developments in torts were driven by intellectual trends, such as expanding notions of causation or efforts to make the legal profession more "scientific" through standardization of principles and education. (13)
A third school takes a more pragmatic approach, viewing growth in tort law as having been driven not by economics or ideas alone but rather by a combination of influences. Proponents of this approach recognize an effort by nineteenth-century jurists to hold business interests accountable for injuries caused by their machines, even as industrial accidents proliferated and industrialists came to dominate Anglo-American government and society. This school interprets developments in the law that created heightened-liability obligations for certain parties as a middle ground between competing standards of negligence and strict liability. According to these scholars, nineteenth-century courts adopted hybrid approaches to tort liability as a means of holding industry accountable without creating unmanageable standards of liability. (14)
This Note argues that the introduction of res ipsa loquitur in 1863 supports this third explanation for the progression of tort law. The judges who decided Byrne v. Boadle were clearly uninterested in giving quarter to a merchant and his business when doing so would leave an innocent pedestrian uncompensated for his injuries. Given the opportunity to limit the scope of heightened liability to cases involving railroad or stagecoach passengers, the Court of Exchequer declined to do so and instead recognized a presumption of negligence outside the common-carrier context. The decision in Byrne is best understood as a practical expansion of existing liability doctrine, and though it provides only a snapshot of jurisprudence during this period, the case persuasively indicates that judges at the height of nineteenth-century industrialization were not so caught up in big business or big ideas that they had abandoned the ageless imperative of the common law system to seek the fairest legal outcome for every set of facts.
I. THE CASE OF BYRNE V. BOADLE
This Part describes the facts and litigation in the case of Byrne v. Boadle. (15) Beginning with a detailed account of events immediately before and after the underlying injury, this Part constitutes the first effort to compile a comprehensive record of the case using the descriptions provided in contemporary law reporters as well as newspaper articles from the period. The Part goes on to describe the arguments raised by counsel for both sides at trial and during the appeal before the Court of Exchequer. Finally, this Part features a close examination of the judicial opinions handed down by the four Exchequer barons.
On July 18, 1863, Joseph Byrne, a commission agent and cork manufacturer in Liverpool, England, set out on a walk that would leave him crippled but immortal. (16) Byrne's stroll took him down Liverpool's Scotland Road. (17) Among the tenants on Scotland Road was the flour dealer Abel Boadle, whose combined residence and shop sat along the thoroughfare's east side. (18) Boadle's premises followed a typical design of the period, with a shop open to the public on the street level and a storage room on the floor above. As Byrne came upon Boadle's shop, a horse and cart sat parked along the road in front. Barrels of flour were being lowered into the cart from Boadle's second-story storeroom. (19) Just as Byrne walked underneath the storeroom's loading bay, a barrel of flour plummeted down, landing squarely on his shoulder and casting him to the ground in front of the shop. (20) Bystanders rushed to Byrue's aid and carried him, senseless, into the grocer's store next to Boadle's flour business. (21) After the accident, Boadle directed his surgeon, a Mr. Jones, to treat the victim. (22) Byrne remained in the grocery for several hours until he was sent home in a cab. (23) His injuries proved severe, including extensive trauma to his chest, back, neck, and foot, and he was completely incapacitated for two weeks. (24) The accident also rendered him permanently lame. (25)
Byrne did not lose time in suing Boadle, seeking 700 [pounds sterling] in damages under a theory of respondeat superior, or vicarious liability, for the alleged negligence of Boadle's employees. (26) Byrne's suit claimed that Boadle's workmen had "so negligently and unskillfully managed and lowered certain barrels of flour by means of a certain jigger-hoist and machinery attached to the shop" that "one of the said barrels of flour fell upon and struck against the plaintiff." (27) Byrne sought damages not only for the physical injuries he had suffered, but also for being "prevented from attending to his business for a long time," "great expense for medical attendance," and "great pain and anguish. (28)
The case was tried before the Assessor of the Court of Passage at Liverpool probably near the end of October 1863, or roughly three months after the accident. (29) Byrne engaged a Mr. Littler and a Mr. Segar as counsel. (30) Boadle retained a Mr. Charles Russell for his defense. (31)
At trial, Littler and Segar presented testimony on behalf of Byrne from two eyewitnesses (a Mr. Critchley and a second, unidentified individual), the plaintiff, and a surgeon. (32) A contemporary newspaper account of the trial alludes to the limited evidence set forth in the plaintiff's case. The article observed that "[s]everal witnesses were called, who spoke to seeing the plaintiff knocked down by the barrel, but there was no evidence of any negligence on the part of the defendant or his servants." (33) Russell argued on behalf of Boadle that Byrne's suit should not go to the jury, since he had failed to show sufficient evidence that Boadle or his employees had been negligent to allow a jury reasonably to decide the question. (34)
After hearing each side's arguments, the trial judge ruled in favor of Boadle, finding insufficient evidence of negligence for the case to be heard by a jury. (35) The trial judge nonsuited Byrne but granted him permission to appeal the case to the Court of Exchequer. (36) In order to facilitate the appeal and in accordance with the procedures of the day, the judge also encouraged the parties to agree on a specific amount of damages which Byrne would seek on appeal. (37) The two sides conferred but were unable to reach a consensus, so they asked the Assessor to submit the damages question to the jury. (38) The Assessor complied, and the jury returned a hypothetical verdict in favor of plaintiff Byrne, awarding him 50 [pounds sterling] in damages for his injuries. (39) The Assessor then dismissed Byrne's suit, leaving him to appeal to the Court of Exchequer in order to recover the jury award. (40)
Byrne's counsel Littler soon filed a rule nisi claiming that the Assessor had been mistaken in dismissing his client's suit for lack of evidence of negligence. (41) The Court of Exchequer granted Littler's motion, and the case was heard before a panel of the Exchequer on November 25, 1863. (42)
Charles Russell again presented the case for defendant Boadle. (43) On appeal, Russell opened his argument with a technical assault on the pleadings. According to Russell, Byrne had failed to introduce any evidence connecting either the defendant or his employees with the accident, despite Byrne's initial declaration averring negligence on the part of "the defendant, by his servants." (44) Russell pointed out that this dearth of evidence made it equally likely that one of Boadle's customers, or even a third-party stranger, had been handling the barrel when it fell and that the defendant could not be held liable under such nebulous facts. (45) At this point, Chief Baron Pollock broke in for the first time, suggesting that the court might presume that it was the defendant's servants who had been manipulating the defendant's flour and that if the facts were otherwise the onus was on the defendant to present them. (46) Russell responded eloquently that "[s]urmise ought not to be substituted for strict proof" and that the burden was on the plaintiff to support his case with "affirmative evidence." (47)
Russell then embarked on a second argument that, even if the defendant or his employees were found to have been responsible for the barrel when it fell, the plaintiff still had failed to show any affirmative evidence of negligence during the events leading to the accident. (48) According to Russell, there was not a "scintilla" of evidence showing negligence by the defendant. (49) In fact, the plaintiff had even failed to support the neutral claim in his declaration that the offending barrel was being lowered by a "jigger-hoist" when it fell. (50) To Russell the only way a court could find negligence would be if it found that "the occurrence is of itself evidence of negligence." (51) With this remark, the able advocate proved a bit too smart for his own, and his client's, good. The statement became one of the great set-up lines in legal history when Chief Baron Pollock took instant issue with it and declared: "There are certain cases of which it may be said res ipsa loquitur, and this seems one of them." (52)
Unfazed, and as unaware of the historic significance of the Chief Baron's remark as Pollock himself, Russell seized on a previous analogy Pollock had made with train wrecks in an attempt to limit the applicability of the idea, claiming that the presumed negligence "doctrine would seem to be confined to the case of a collision between two trains upon the same line, and both being the property and under the management of the same Company." (53) Russell, citing such a case, conceded that under those facts "there must have been negligence, or the accident could not have happened." (54) Russell also cited two other cases that he said were widely considered to represent a "doctrine of presumptive negligence" but that, upon closer scrutiny, proved not to do soy In the first case, Carpue v. London and Brighton Railway Co., Russell noted that the plaintiff had been able to present affirmative evidence of negligence against the defendant railroad. In the second case, Christie v. Griggs, Russell argued the defendant stagecoach owner had been subject to heightened liability because privity had existed between the owner and the injured passenger who brought the suit, unlike in the current case. (56) The Chief Baron pressed Russell on the latter point, inquiring, "What difference would it have made, if instead of a passenger a bystander had been injured [in Christie]?" Russell sought to distinguish the situations, maintaining that the stagecoach owner "was bound by his contract to provide a safe vehicle" for his passengers and that, in the event of an injury to one of them, the occurrence of a wreck alone might serve as sufficient proof that the owner had failed to fulfill his contractual duty to the plaintiff. (57) Whereas, in the case of an injured bystander, the stagecoach owner would only be liable upon an affirmative showing of negligence on either his or his employees' part and the mere "fact of the accident" would not serve as adequate proof of negligence. (58)
Russell then turned to several cases that he said placed definitive limits on the scope of the so-called "doctrine of presumptive negligence." He began with Bird v. Great Northern Railway Co., perhaps because Pollock himself had presided over that trial, asserting that it showed "the fact of a train running off the line is not prima facie proof where the occurrence is consistent with the absence of negligence on the part of the defendants." (59) Russell relied on a second case, Cotton v. Wood, for the proposition that "a Judge is not justified in leaving the case to a jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant." (60)
Following yet another exchange between Russell and Pollock, (61) a second jurist, Baron Bramwell, entered the fray and struck a moderating tone. Bramwell observed that "the presumption of negligence is not raised in every case of injury from accident, but in some it is." (62) Appealing to the logic of judicial discretion, Bramwell continued that "[w]e must judge of the facts in a reasonable way; and regarding them in that light we know that these accidents do not take place without a cause, and in general that cause is negligence." (63) But Russell quickly countered that "[t]he law will not presume that a man is guilty of a wrong." (64) He stressed that the paltry facts proved by the plaintiff were still consistent with the notion that Boadle's employees had been "using the utmost care and the best appliances to lower the barrel with safety." (65)
To this Baron Bramwell raised what would become a familiar justification for the doctrine of res ipsa loquitur, namely the informational advantage that defendants in such cases have over plaintiffs. Bramwell reasoned that presumptions of negligence were warranted where "an injury is done to the plaintiff, who has no means of knowing whether it was the result of negligence;...
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