Case of res ipsa loquitur in our courthouse - Not a disease, or maybe it is?
Latin for "The thing speaks for itself".

Good "legal doctrine" for negligence by the likes of pianos dropped down on pedestrians,
But not for falling off a flatbed truck at night while trying to relieve oneself


It was during voir dire, the examination and picking of the jury from the eighty or so potential jurors, that the case was already getting interesting. Voire dire is Latin for "to speak the truth", by the jurors, of course.

As it turned out later, it involved two young men, only about 18 or 19 at the time, one of whom fell off the back of the other's moving truck about five years ago, got knocked out when he hit the road, and claimed to have no memory of falling. He was suing for emergency medical bills, plus for surgery on his back a few years later.

The lawyer was suing under the doctrine of res ipsa loquitur - meaning that there had to be negligence by the driver when someone falls off a truck, and said that without this doctrine he would not have a case, and that it was the first time ever that res ipsa loquitur had been used in a vehicle case.

Picking a jury, etc

It was still jury selection time, not time for trial, but the plaintiff's lawyer came right to the point:

"How many of you believe that there are too many frivolous lawsuits?" All hands went up.

"Which lawsuit comes to mind?" The answer from the jury pool, "HOT COFFEE."

"Anyone been involved in a wreck, that would cause you to be biased?" None

"My client was in the back of the vehicle. The other side is trying to show he was trying to relieve himself."

"I thought it was illegal to ride in the back of a truck", was the comment from the jury pool. No response from the lawyer.

"Anybody involved in TORT reform?" None

"Anybody believe civil TORT needs to be revamped?" Several affirmatives, and a few comments.

"Anyone else believe TORT is driving doctors out of business?"

"Anybody have any bias toward the court system?"

"Anybody believe insurance rates are being run up?"

"I think our world has gotten sue-happy", was one of the answers. The lawyer replied that "this is not a malpractice, just a normal civil suit."

Next, "Anybody believe that it is not fair, if the lawyers argue away from the jury?" There was no reply, and with that the lawyer ended.

Lawyers of course ALWAYS argue "away from the jury", or rather where the jurors cannot hear their conversation with the judge, and surely "argue" on paper, and do they "argue" on paper, and the jury does not even know about it, and what all is being kept from the jury.

Next the lawyer for the driver:

"The testimony is going to show that my client was not doing anything unusual", and that the one that fell off the truck, well, he just fell of the back of the truck, and that the driver was not the cause of it."

But then lawyers always claim that their client is in the right.

"They want to focus on the injury."

The question came up again as to whether it was unlawful to ride in the back of a pickup. The discussion went that it might not be unlawful, but might be foolish.

A short time later a jury was picked, plus an alternate, who would indeed be needed because one of the twelve jurors wound up sick.

It did not become clear until the time of the trial, about a week later, that it had not been a pickup at all, but a one-ton flatbed truck, without any guard rails and very little to hold on to, only a toolbox on the back, with two other young persons already sitting on it, plus the young man who had somehow fallen off, joyriding at night on our county roads, with the plaintiff who had fallen off, apparently shortly before that, climbing out through the window onto the back while the truck was moving. And from the court records, apparently everybody was intoxicated, although that issue was NEVER brought before the jury. .

* * * * * * * * * * * * *

As I frequently do when a matter in our court has caught my attention, I go to the clerk's office to look at the file, to see what is below this whole thing, what the lawyers are saying, to get an idea of their underlying strategy, what they are going to show, what they want to suppress, and why. The files are of course public records, and I have never had a problem getting a hold of anything. It just takes time to sift through all that paper, and a lot is just smoke, so I have learned, and never goes before the jury. In fact few cases, only about one in 300 itself ever go to a jury. So this one going to a jury must have been of some sort of significance to someone, I thought, and I was determined to learn why.

By the words used in filing this case I could see that this was a "negligence" case. In lawyer talk, "causes" have "elements" to them. I have learned that a "negligence" case has to show the following "elements", that 1) someone had a duty to do something, 2) that he failed to do this or failed to use "ordinary care", 3) that the "plaintiff" was "damaged", and 4) the "defendant" was the "proximate cause" of the "damage" or "injury". Using "english" English, he is responsible, and should be made to pay for what he did. Lawyers call it making the plaintiff "whole" again, or "curing" the "damage", by money, of course. The goal of a criminal trial is of course quite different. There does not even have to be "damage" in those, just the breaking of the law, but that is another matter.

The one who fell off claimed he did not know the driver was drunk, or in legalese, "At the time and date the Plaintiff accepted Defendant's ride, he was unaware that the Defendant was intoxicated".

Right off I started thinking to myself, is this really "Defendant's ride", i.e. the driver's "ride"? Why is this not "Plaintiff's ride", i.e. it belongs to the one who fell off! The Petition went on, "The offer of the ride by Defendant required that the Plaintiff ride on the flat, unrestricted rear bed of the one ton truck." Why does the "offer" require it? I can see how a "ride" might require it, but then I have learned that lawyers are not always precise.

The Petition went on, "Defendant was unable to maintain proper control of the truck, drove the truck at an excessive rate of speed, and failed to avoid rough areas and pot holes in the county road, and, as a proximate result, and with heedless and reckless disregard for the rights of the Plaintiff, threw the Plaintiff from the truck to the pavement."

How can one be "negligent" in "throwing"? Anyhow, the Petition went on that the driver "was guilty of negligence" by "driving his vehicle at a reckless and high rate of speed". That is of course what drunk drivers do, but I could not see that this was "negligence". Negligence in the courts is defined as not doing what a "prudent person" would do under "similar circumstances". What would a "prudent person" do, under "similar circumstances", i.e. if he were drunk? Is there such a thing as a "prudent drunk", or can there even be "negligence" by a drunk? All the words in the Petition are of course only words on paper, and the jury would never make a decision on this, for they would never hear about alcohol or beer.

Anyhow, the specifically alleged matter of negligence was that the driver was "driving his vehicle at a reckless and high rate of speed."

In his Answer, the driver's lawyer in turn blamed things on the young man who had fallen off, that HE failed to exercise "ordinary care" and was guilty of "contributory negligence". That seemed to at least make some sense to me.

The Plaintiff's First Amended Petition appeared even more curious. It added the following acts of "negligence":

"Inviting Plaintiff into his truck for the purpose of drinking beer."

"In inviting Plaintiff to ride on the back of Defendant's flatbed truck when he knew that Plaintiff had imbibed too much alcohol and was so intoxicated that he could not ride in such a position safely."

The Plaintiff had of course previously alleged that the driver was "intoxicated" and was "unable to maintain proper control", and here he is alleging that his own client was "so intoxicated" that he could not "ride in such a position safely." The Plaintiff himself is claiming that everybody was drunk!

One drunk "knew" that the other drunk "had imbibed too much alcohol"? I have found out that lawyers frequently put something down on paper, anything that sounds good, out of some law book, only that it does not fit. But this did not even sound good.

Next comes Plaintiff's Second Amended Petition, adding the following acts of negligence:

"In providing an excessive amount of beer to Plaintiff"

"In failing to operate his vehicle so that his passenger would not be injured or ejected from the vehicle."

How can the plaintiff who was "on the back of Defendant's flatbed truck" be "ejected"? I always thought "ejected" meant that something had to be ejected out of something. But then, the jury would never hear about the beer, but nevertheless rule against the one who fell off. I almost could not keep from laughing as I read all of this stuff.

Words, words, words.

But what really caught my attention was a last minute "motion in limine", forbidding "any reference that [names] had been drinking alcoholic beverage or beer on the day of the accident".

According to Black's Law Dictionary, a motion in limine is, "A written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements. Purpose of such motion is to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial and granting of motion is not a ruling on evidence and, where properly drawn, granting of motion cannot be error."

This case was not about an "accident"at all!   Black's Law Dictionary gives the following definitions for "accident": an event happening without any human agency. Some sudden and unexpected event taking place without expectation. Any unexpected personal injury resulting from any unlooked for mishap or occurrence.

To me at least, a supposedly drunk person falling off the back of a vehicle would not be totally unexpected, and would surely not be "without human agency", if there had indeed been drinking. But then the one who fell of, he was not the one being sued.

But had not the issue in the case been alcohol, whether the one who had fallen off had been "unaware that the Defendant [driver] was intoxicated"? And that the driver had been "negligent" in

"Inviting Plaintiff into his truck for the purpose of drinking beer

"In inviting Plaintiff to ride on the back of Defendant's flatbed truck when he knew that Plaintiff had imbibed too much alcohol and was so intoxicated that he could not ride in such a position safely", and

"In providing an excessive amount of beer to Plaintiff"?

There was some "law" attached to the motion in limine, to the effect that "evidence of alcohol consumption standing alone is inadmissible unless there is further evidence of negligence or improper conduct on the part of the user." Anyhow, I thought, this is going to be an interesting trial, if the suit is based on alcohol, but they won't be talking about alcohol to the jury.

* * * * * * * *

The following is reconstructed from my notes. The plaintiff's lawyer came right to the point, after giving his name, and telling the jury that he believed this case could be tried "fairly quickly". As it turned out, two days had been set for it, but it took only ONE day, and turned out to probably set a record for shortness of a civil jury trial. It did not start till 10:00 a.m. because one juror was sick, and the alternate had to be called, but it went to the jury just before 4:00 p.m., even with lunch in there, and the jury had a verdict by about 5:30 p.m.

"This is the first time of a NEGLIGENCE case being brought under res ipsa loquitor."

"Res ipsa loquitor is Latin for 'the thing speaks for itself'.

"If I gave you a coke, and you opened it, and it suddenly fizzed [or whatever] … …

"It creates the presumption that there was something done wrong by someone … ..

"It is an event that does not ordinarily happen -- UNLESS -- there is negligence … …

"The evidence will show that in this case it was the FLATBED TRUCK … …

"The truck is the INSTRUMENTALITY … …

"Under Texas law, if a ride is offered, the driver has certain DUTIES … …

"My client fell, but he has NO MEMORY … …

"He cannot testify, and therefore we have to go to res ipsa loquitor ……

"At the time he was only nineteen … …

"He had serious problems when he went back to full work … …

"His one time friends are not friends anymore … …

"Always ask yourself, why would Mr. [driver] take passengers if he had room in the cab

"There were other passengers who will say HE RELIEVED HIMSELF … …

"Witnesses can make SELF-SERVING statements … …

"But Mr. [who fell off] has NO MEMORY."

Next came the driver's lawyer, and he was equally to the point:

"Mr. [driver] also has his father with him. But he will not be a witness … …

"They [the other side] don't want you to know what happened … …" But then it was THIS LAWYER who had put in for the motion in limine, excluding evidence of BEER!

"Here is what to expect, what will come from the evidence … …

"Everybody was driving around on county roads, as 19 year olds do … …

"This is the FIRST TIME res ipsa loquitor has been used in a vehicle accident … …" Again here is that accident word.

"It means it usually speaks for itself … …

"But negligence of Mr. [who fell off] is also on trial -- but we did not sue him." Now why would the lawyer state "we did not sue him"? He surely did not cause "damage" to the driver, except possibly now with this whole suit.

"Mr. [who fell off] cannot tell you … …

"Mr. [who fell off] tried to crawl out the window … …

"Mr. [driver] did not do anything other than what was ordinary … …

"That was 1998 ……" SIX YEARS, I thought to myself, for this to come to trial.

"The evidence will show that Mr. [who fell off] made a bad decision … …

"This case is about the BEHAVIOUR of the two persons… …

"Obviously the injuries are related … …

"But the back surgery was two years AFTER the accident … …"

Plaintiff's lawyer first put the driver on the witness stand. First the general amenities as to who was where. When asked if there was "a lot of horseplay going on", the answer was NO. When asked when was the first time he knew that someone had fallen off, the answer was when they started knocking on the cab, and that he called for an ambulance, and it, together with several police showed up, and were there 30 minutes or more.

Next on the witness stand was the one who had fallen off. After a few amenities:

"Who got on the back?" Answer: a young man and woman on a tool box

"What else was there?" "A COOLER"

"Where were you (one who fell off) when you saw them?" "In the cab", was the reply by the one who had fallen off the back.

"Where did you go?" "Back roads"

"How fast were you going?" "25-30"

"When did you decide to go to back [of the truck]?" "DO NOT RECALL"

"Any memory of crawling out?" "NO"

"Any memory of being on back?" "A little"

"Where did you sit?" "Toolbox"

"Where were the other two?" "Standing up at the head rack. I remember holding on to Mr. [name] as he relieved himself. There was nothing to hold onto. I had a bad feeling he was going to fall off."

"Do you remember moving the COOLER?" "I don't remember"

"What is the next thing you remember" "Waking up on the road"

"What next do you remember?" "Hurting"

"You heard statements of you relieving yourself?" "I do not believe I would have done it."

Next a little more testimony about his medical condition, but I had to leave. It was about 11:30 a.m.

When I came back after lunch at about 2:00 p.m. the lawyers were arguing, with no jury listening. The lawyer for the driver was arguing that there had been NO evidence of the "instrumentality" [i.e. the TRUCK] supposedly causing the injury, actually having caused any injury, and he was asking the judge for what is called a "directed verdict".

"They have NOT shown any evidence that the INSTRUMENTALITY caused the injury, since they have not provided any evidence that the TRUCK caused the injury."

Anyhow, the case went on, with the lawyer for the driver reading from a deposition where the one who had fallen off was quoted as having said it was "his own fault." And with that the evidence was closed.

I have since looked up res ipse loquitur, and it appears to be something used mainly in medical malpractice, where something happens like a surgical instrument is left inside a patient, and it HAS to be negligence, for instruments are not to be left inside a patient. And the patient surely cannot testify just who did it, and doctors may be hesitant to point fingers at another doctor, just like one lawyer might not want to testify against another in a legal malpractice case. So lawyers come up with res ipsa loquitur to get around the doctors.

Another case I read mentions, with some jest, a pedestrian on a downtown sidewalk being hit by a falling piano. There has to be negligence, since pianos do not normally drop out of the sky! Another case mentions a load of bricks coming down in a likewise manner.

Next the closing argument by the plaintiff's lawyer:

"We are not talking about a hayride."

"Let me talk to you about the testimony … …

"This has been a HARD case on my client (who fell off) … …

"Hard case. That is why they come to a jury … …

"Who should say that Mr. [who fell off] was negligent, if he has NO memory … …

"Let me go over some records … …

"The doctor said he could not return as an iron worker. He released him -- first only LIGHT work -- then to FULL work -- I don't know why that is in there?"

"Whether the back surgery was indeed related. I can't cover why the doctor would release him to FULL work."

"I told you this was the FIRST res ipsa loquitur case. Mr. [who fell off] had a DIFFICULT case. But it speaks for itself. Mr. [who fell off] is here unable to speak

Next came the lawyer for the driver addressing the jury:

"Without YOU, we would not be able to defend ourselves"

"I think this IS one of those cases where evidence speaks for itself"

"But for [one who fell off] STANDING UP -- we would not be here"

"You have heard no evidence that Mr. [driver] operated vehicle in any other way …

"You have heard them say that he would not stop -- that is not reasonable for a 19 year old.

"Let me go over the jury questions. Did the negligence of [my client] cause it?

"I don't think res ipsa loquitur is applicable

"They themselves said it was the FIRST time

"They come in here with a STRAIGHT face … …

"The Plaintiff himself can't testify … …

"There is NO evidence from ANY other witness

"But for Mr. [who fell off] standing up, we would not be here … …

"You don't have to consider all the other stuff (medical records)

"If he would have had back problems, he would have been complaining

"Where does the doctor get his facts -- from Mr. [who fell off]

"When the doctor RELEASED HIM -- that is MOST important … …

"The back surgery -- that is NOT connected with this case … …

"This case is about BEHAVIOR ….

"Although this suit is by Mr. [who fell off], Mr. [who fell off] is also on trial ……

Next the Plaintiff's lawyer, in reply:

"This is the fastest trial I have ever had … …

"Let me tell you where they LIED … …

"Without this doctrine (res ipsa loquitur) one would not be able to recover in some cases … …

"This doctrine allows us to recover … …

"YOU are the sole judge of credibility … …

"This (res ipsa loquitur) is the only case where you can INFER negligence … …

"We have to come here. Because there is no other place"

And with that the case went to the jury. About an hour later a knock from the jury room. I see the bailiff bring them a pitcher of water. Then sounds like the jury are having a party in there, then five minutes later a LOUD knock.

Shortly thereafter, the judge comes back into the courtroom. Question 1 had asked the jury to determine whether the driver had been negligent. Their answer was NO, and the case was over. They did not even have to consider all those medical records!

The questions I have is about why the lawyer had taken this case all the way to trial. This was not a case of a lawyer not prevailing because the jury got hung, but the jury seeing it for what they saw, and they did not see a valid claim. Such was my opinion, just from listening in at jury selection, and indeed the jury came to the same finding.


Hit Counter