417 . Special Doctrines: Res ipsa loquitur
[ Name of plaintiff ] may prove that [ name of defendant ]’ s negligence caused
[his/her/ nonbinary pr onoun ] harm if [he/she/ nonbinary pr onoun ] proves all
of the following:
1. That [ name of plaintiff ]’s harm ordinarily would not have
happened unless someone was negligent;
2. That the harm was caused by something that only [ name of
defendant ] controlled; and
3. That [ name of plaintiff ]’s voluntary actions did not cause or
contribute to the event[s] that harmed [him/her/ nonbinary
If you decide that [ name of plaintiff ] did not prove one or more of these
three things, you must decide whether [ name of defendant ] was negligent
in light of the other instructions I have r ead.
If you decide that [ name of plaintiff ] proved all of these thr ee things, you
may , but are not r equired to, find that [ name of defendant ] was negligent
or that [ name of defendant ]’s negligence was a substantial factor in
causing [ name of plaintiff ]’ s harm, or both.
[ Name of defendant ] contends that [he/she/ nonbinary pr onoun /it] was not
negligent or that [his/her/ nonbinary pr onoun /its] negligence, if any , did not
cause [ name of plaintiff ] harm. If after weighing all of the evidence, you
believe that it is more pr obable than not that [ name of defendant ] was
negligent and that [his/her/ nonbinary pr onoun ] negligence was a
substantial factor in causing [ name of plaintiff ]’ s harm, you must decide
in favor of [ name of plaintiff ]. Otherwise, you must decide in favor of
[ name of defendant ].
New September 2003; Revised June 201 1, December 201 1
Directions for Use
The first paragraph of this instruction sets forth the three elements of res ipsa
loquitur . The second paragraph explains that if the plaintif f fails to establish res ipsa
loquitur as a presumption, the jury may still find for the plaintif f if it finds based on
its consideration of all of the evidence that the defendant was negligent. ( See Howe
v . Seven Forty T wo Co., Inc . (2010) 189 Cal.App.4th 1155, 1 163-1 164 [117
Cal.Rptr .3d 126].)
If the plaintif f has established the three conditions that give rise to the doctrine, the
jury is required to find that the accident resulted from the defendant’ s negligence
unless the defendant comes forward with evidence that would support a contrary
finding. (See Cal. Law Revision Com. com. to Evid. Code, § 646.) The last two
paragraphs of the instruction assume that the defendant has presented evidence that
would support a finding that the defendant was not negligent or that any negligence
on the defendant’ s part was not a proximate cause of the accident. In this case, the
presumption drops out, and the plaintif f must then prove the elements of negligence
without the benefit of the presumption of res ipsa loquitur . (See Howe, supra , 189
Cal.App.4th at pp. 1 163-1 164; see also Evid. Code, § 646(c).)
Sources and Authority
• Res Ipsa Loquitur . Evidence Code section 646(c).
• Presumption Af fecting Burden of Producing Evidence. Evidence Code section
• “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a
presumption af fecting the burden of producing evidence.’ The presumption arises
when the evidence satisfies three conditions: ‘(1) the accident must be of a kind
which ordinarily does not occur in the absence of someone’ s negligence; (2) it
must be caused by an agency or instrumentality within the exclusive control of
the defendant; (3) it must not have been due to any voluntary action or
contribution on the part of the plaintif f.’ A presumption af fecting the burden of
producing evidence ‘require[s] the trier of fact to assume the existence of the
presumed fact’ unless the defendant introduces evidence to the contrary . The
presumed fact, in this context, is that ‘a proximate cause of the occurrence was
some negligent conduct on the part of the defendant . . . .’ If the defendant
introduces ‘evidence which would support a finding that he was not negligent or
that any negligence on his part was not a proximate cause of the occurrence,’ the
trier of fact determines whether defendant was negligent without regard to the
presumption, simply by weighing the evidence.” ( Br own v . Poway Unified School
Dist. (1993) 4 Cal.4th 820, 825-826 [15 Cal.Rptr .2d 679, 843 P .2d 624], internal
citations omitted.)
• “ ‘The doctrine of res ipsa loquitur is applicable where the 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 one
responsible.’ ” ( Howe, supra , 189 Cal.App.4th at p. 1 161.)
• “Res ipsa loquitur is an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is suf ficient.’ ” (Howe, supra, 189 Cal.App.4th at p. 1 161,
internal citation omitted.)
• The doctrine “is based on a theory of ‘probability’ where there is no direct
evidence of defendant’ s conduct, permitting a common sense inference of
negligence from the happening of the accident.” ( Gicking v . Kimberlin (1985)
170 Cal.App.3d 73, 75 [215 Cal.Rptr . 834].)
• “All of the cases hold, in ef fect, that it must appear , either as a matter of
common experience or from evidence in the case, that the accident is of a type
which probably would not happen unless someone was negligent.” ( Zentz v .
NEGLIGENCE CACI No. 417
Coca Cola Bottling Co. of Fr esno (1952) 39 Cal.2d 436, 442-443 [247 P .2d
• The purpose of the second “control” requirement is to “link the defendant with
the probability , already established, that the accident was negligently caused.”
( Newing v . Cheatham (1975) 15 Cal.3d 351, 362 [124 Cal.Rptr . 193, 540 P .2d
• “The purpose of [the third] requirement, like that of control by the defendant is
to establish that the defendant is the one probably responsible for the accident.
The plaintif f need not show that he was entirely inactive at the time of the
accident in order to satisfy this requirement, so long as the evidence is such as
to eliminate his conduct as a factor contributing to the occurrence.” ( Newing,
supra, 15 Cal.3d at p. 363, internal citations omitted.)
• The third condition “should not be confused with the problem of contributory
negligence, as to which defendant has the burden of proof. . . . [I]ts purpose,
like that of control by the defendant, is merely to assist the court in determining
whether it is more probable than not that the defendant was responsible for the
accident.” ( Zentz, supra, 39 Cal.2d at p. 444.)
• “[Evidence Code section 646] . . . classified the doctrine as a presumption
af fecting the burden of producing evidence. Under that classification, when the
predicate facts are established to give rise to the presumption, the burden of
producing evidence to rebut it shifts to the defendant to prove lack of negligence
or lack of proximate cause that the injury claimed was the result of that
negligence. As a presumption af fecting the burden of producing evidence (as
distinguished from a presumption af fecting the burden of proof), if evidence is
presented to rebut the presumed fact, the presumption is out of the case - it
‘disappears.’ But if no such evidence is submitted, the trier of fact must find the
presumed fact to be established.” ( Howe, supra , 189 Cal.App.4th at p. 1 162.)
• “ ‘If evidence is produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a proximate cause of the
accident, the presumptive ef fect of the doctrine vanishes.’ ‘[T]he mere
introduction of evidence suf ficient to sustain a finding of the nonexistence of the
presumed fact causes the presumption, as a matter of law , to disappear .’ When
the presumptive ef fect vanishes, it is the plaintif f’ s burden to introduce actual
evidence that would show that the defendant is negligent and that such
negligence was the proximate cause of the accident.” ( Howe, supra , 189
Cal.App.4th at p. 1 163, internal citations omitted.)
• “As the [Law Revision Commission] Comment [to Evidence Code section 646]
explains, even though the presumptive ef fect of the doctrine vanishes, ‘the jury
may still be able to draw an inference that the accident was caused by the
defendant’ s lack of due care from the facts that gave rise to the
presumption. . . . [¶] . . . [¶] . . . An inference of negligence may well be
warranted from all of the evidence in the case even though the plaintif f fails to
establish all the elements of res ipsa loquitur . In appropriate cases, therefore, the
CACI No. 417 NEGLIGENCE
jury may be instructed that, even though it does not find that the facts giving rise
to the presumption have been proved by a preponderance of the evidence, it may
nevertheless find the defendant negligent if it concludes from a consideration of
all the evidence that it is more probable than not that the defendant was
negligent.’ ” ( Howe, supra , 189 Cal.App.4th at p. 1 163, internal citation
• “It follows that where part of the facts basic to the application of the doctrine of
res ipsa loquitur is established as a matter of law but that others are not, the
court should instruct that application of the doctrine by the jury depends only
upon the existence of the basic facts not conclusively established.” ( Rimmele v .
Northridge Hospital Foundation (1975) 46 Cal.App.3d 123, 130 [120 Cal.Rptr .
Secondary Sources
1 W itkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
7 W itkin, California Procedure (5th ed. 2008) T rial, § 300
Haning et al., California Practice Guide: Personal Injury , Ch. 2(II)-G, Inability T o
Pr ove Negligence Or Causation - Res Ipsa Loquitur , “Alternative Liability” And
“Market Shar e Liability” , ¶¶ 2:1751-2:1753 (The Rutter Group)
1 Levy et al., California T orts, Ch. 3, Pr oof of Negligence , § 3.20 et seq. (Matthew
1A California T rial Guide, Unit 1 1, Opening Statement , § 1 1.42, Unit 90, Closing
Ar gument , § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence , § 380.1 1
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence , § 165.340 et seq.
(Matthew Bender)
NEGLIGENCE CACI No. 417
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
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