When a Plaintiff files a personal injury lawsuit against a Defendant, the law states the Plaintiff has the burden of proving his case.  This means the Plaintiff has to prove that the Defendant was negligent and said negligence was a cause of his injuries.  However, in certain circumstances, the burden of proof shifts to the Defendant and he is then forced to disprove his negligence.  This is known as res ipsa loquitur, and occurs whenever a court can reasonably find that the event is of the kind which ordinarily would not occur in the absence of someone’s negligence and the  Defendant’s inferred negligence was, more probably than not, a cause of the injury, the doctrine of res ipsa loquitur applies even if a Plaintiff’s negligent acts or omissions may also have contributed to the injury.  An example of this type of situation is when a doctor leaves a sponge inside a patient upon completion of surgery or he operates on the wrong body part. 

 

In breaking these situations down, Colorado courts have noted that a Plaintiff does not need to positively eliminate all explanations other than the Defendant’s negligence, but instead a Plaintiff has done enough where “the facts proved reasonably permit the conclusion that negligence is the more probable explanation.”  It’s important to note that a Plaintiff does not need to exclude all others beyond doubt to show that the Defendant, rather than someone else, was more probably than not, responsible for the negligence.  Equally important is that in determining whether to give a res ipsa loquitur instruction, the court must look at the evidence in the case and all legitimate inferences to be drawn therefrom in the light most favorable to the Plaintiff. 

 

The doctrine of res ipsa loquitur has been long standing in Colorado and can be very helpful to Plaintiffs who have been injured by a Defendant’s obvious negligence.  In fact, the Colorado Court of Appeals affirmed the res ipsa loquitur doctrine on December 27, 2012 when they reversed a trial court’s decision to not shift the burden of proof to the Defendant once the presumption of negligence arose.  The Court stated that under the doctrine, “once the presumption of negligence arises, the burden shifts to the Defendant to overcome the presumption, and to establish affirmatively that no negligence existed on his part.”  For more information of this recent case, see Harner v. Chapman, 2012 COA 218 (Colo. App. 2012).

RIL

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