Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
Notes
1. The elements of res ipsa. Under what conditions can plaintiffs establish res ipsa loquitur?
According to many courts, the doctrine of res ipsa loquitur requires proof of “casualty of a kind
(1) that does not ordinarily occur absent negligence; (2) that was caused by an instrumentality
exclusively in the defendant’s control; and (3) that was not caused by an act or omission of the
plaintiff.” See, e.g., Holzhauer v. Saks & Co., 697 A.2d 89, 92-93 (Md. 1997). Courts have used
the second element to preclude res ipsa loquitur claims when parties other than the defendant can
control the instrumentality causing injury to the plaintiff. For example, in Holzhauer, the
Maryland Court of Appeals precluded a res ipsa loquitur claim from a plaintiff who was injured
when a mall escalator stopped abruptly. Because “hundreds of [the defendant’s] customers ha[d]
unlimited access to the [escalator’s] emergency stop buttons,” the court held that it was
“impossible to establish that the escalator was in [Defendant’s] exclusive control.” Id. at 94.
Courts in other jurisdictions have diverged from the Maryland Court of Appeals’s holding in
Holzhauer. For example, in Rose v. Port of New York Authority, the New Jersey Supreme Court
held that the plaintiff, who was struck by an automatic glass door at an airport, could recover
under the doctrine of res ipsa loquitur. Because “members of the public pass . . . through
automatic doors . . . without sustaining injury,” the court held that the plaintiff’s injury was
“unusual and not commonplace, . . . strongly suggest[ing] a malfunction, which in turn suggests
neglect.” Rose v. Port of N.Y. Auth., 293 A.2d 371, 375 (N.J. 1972). But see Kmart Corp. v.
Bassett, 769 So. 2d 282, 283 (Ala. 2000) (rejecting res ipsa doctrine in automatic doors case).
2. Res ipsa discriminator? A falling barrel or check-in kiosk are not the only scenarios in
which the burden of production is shifted to the defendant. In the same way a person walking
down the street may not be able to prove what led to a barrel falling on their head, employees
often lack the evidence to prove that they were the objects of a discriminatory adverse
employment action. In McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Supreme Court
created a burden shifting scheme to fix this problem. When an employee can make out a prima
facie case of discrimination under Title VII of the Civil Rights Act, the burden of production
shifts to the employer to provide a non-discriminatory reason for the decision. Id. at 802. Once
the defendant provides a reason, the burden shifts back to the plaintiff to show that this reason is
mere pretext. Id. at 798. Even if the plaintiff can prove the employer’s proffered decision is
pretextual, the plaintiff is not automatically entitled to summary judgement. St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993). Rather, a jury must decide whether the pretextual rationale
is a front for invidious discrimination or some other justification the employer would rather keep
quiet, like a particularly petty personal dispute. Fisher v. Vassar College, 114 F. 3d 1332 (2d Cir.
1997). In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000), the Supreme Court
clarified that when a plaintiff proves a prima facie case of discrimination and also proves that the
employer’s proffered reason is pretextual, the plaintiff does not automatically gain summary
judgment, but such a plaintiff may sometimes be entitled to summary judgment, depending on the
facts in the record.
Why not make adjudication in employment discrimination cases turn on the fate of the
employer’s proffered reason? In this approach, the plaintiff would win if the jury were persuaded
by a preponderance of the evidence that the defendant’s proferred reason was a pretext, regardless
whether or not the plaintiff has also proven by a preponderance that the real reason was unlawful
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