I'm of two minds about this case. Wait, no. Make that three.
It's a routine bus accident in L.A., the kind that I'm sure happens at least weekly. A bus is at the intersection of Van Nuys and Roscoe and rear-ends another car, throwing a passenger out of her seat and making her hit her head. The passenger sues, claiming the bus driver was negligent. The MTA, by contrast, contends that the car, not the bus driver, was at fault by changing lanes and then suddenly stopping. The jury finds for the MTA, and the principal question on appeal is whether the plainiff was entitled to a res ipsa loquitor instruction.
On the one hand, I'm sure that Justice Perluss is correct that such an instruction was required. The MTA is a common carrier, with the heightened duty that brings, and there's a bunch of longstanding precedent that says that accidents involving common carriers require a res ipsa instruction. Sure, those cases are way old -- from the 1940s and stuff -- but they've not been overruled, so the Court of Appeal can only do so much. (Plus, I learned from a footnote in the opinion that the first res ipsa loquitor case was allegedly not the famous English "barrel-rolling-out-of-the-warehouse" case, but was actually a common carrier case in which the axle of a stagecoach broke. Neat stuff.)
On the other hand, however, as a matter of first principles, a res ipsa instruction in this context seems silly. From what I vaguely recall from first-year torts, res ipsa applies only when an "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 person who is responsible." (Okay, that's a quote from a 1975 California case, not memory, but the principle is the same.) Now, maybe in 1940 or whatever, bus accidents were almost always the fault of the bus driver, or you couldn't figure out why, but no way that's true now. Nowadays, these are just like any other accident; either driver might be at fault, and the jury's job is simply to figure it out in light of the evidence. It's not like a barrel out of a warehouse, which rarely happens and, when it does, it's likely to be the warehouse's fault. Bus accidents happen all the time, and they could well be anyone's fault. So it seems like res ipsa shouldn't apply.
It's true, of course, that common carriers have heightened duties of care to their passengers. But we properly give an instruction on that at trial, and adding res ipsa on top of that doesn't seem like what res ipsa's designed to do. It's one thing to say "bus drivers need to be really careful; remember that when you decide liability." It's entirely another to say "you should assume that any accident involving a bus driver is the driver's fault." Lots of situations that involve heightened duties (bailments, fiduciaries, etc.) don't get res ipsa instructions. That's because there's a difference between duty and res ipsa; the two are designed for different situations, and saying you're entitled to the latter due to the former seems wrong to me. At least, again, as a matter of first principles.
Which brings me to my third mind. Even if a res ipsa instruction should have been given, it is reversible error? Justice Perluss says that the liability issue at trial was close, and I assume he's correct. To me, that's perhaps necessary, but not sufficient, for reversal. Res ipsa loquitor is only a presumption -- a burden-shifting device. Here, there was active evidence on both sides as to which driver was at fault; witnesses, reconstructions, etc. The jury weighed the evidence and concluded that the driver of the car, not the bus driver, was responsible. Given that fact, it seems to me that a res ipsa loquitor instruction shouldn't matter. Yes, res ipsa requires that the defendant (which now has the burden of production) put forth evidence, but the MTA clearly did that here, and the jury found that evidence persuasive. Res ipsa may also shift the burden of proof, but that only legally matters if the evidence is in equipose; in other words, that the jury concludes that it's exactly equally probable that both sides were liable. What's the chance that the jury thought evidence was in exact equipose in a sitaution like this, even in a close case? That it was exactly 50/50 as to who was at fault, not 50.00001% to 49.99999%? Pretty much none. In which case the failure to give an instruction, at least in a situation like this, is indeed harmless error, and the jury's verdict should thus be upheld.
Do I understand that juries don't actually work like that? That instructions like res ipsa may well make 'em put a weight on the substantive scale in favor of the plaintiff? Sure I do. But the instruction isn't supposed to work that way, and I see little reason to reverse on the ground that the decision would be different because if the court had given the right instruction we're pretty sure the jury wouldn't have accurately followed the law.
In short, this is a case that takes me way back to the 20th century, sitting in Torts in Austin Hall and learning a little bit of Latin. A neat little trip on a bright, sunny and beautiful Tuesday. The type that Cambridge so rarely saw during my sojourn there. Given precedent, I understand the reason to come out the way Justice Perluss does. But as a policy and doctrinal matter, I wonder if that's the right result if we could write on a blank slate.
