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INTRODUCTION.....................................................................................................1065
I. THE CASE OF BYRNE V. BOADLE......................................................................... 1070
II. THE ORIGINS OF BYRNE V. BOADLE AND RES IPSA LOQUITUR .......................... 1077
A. The Classical Law of Falling Objects.......................................................1079
B. The Roots of Presumptive Negligence....................................................... 1081
C. The Barons: Linking Byrne and Presumptive Negligence ........................1088
1. Pollock, C.B........................................................................................1090
2. Bramwell, B........................................................................................ 1096
III. PLACING BYRNE AND RES IPSA LOQUITUR IN THE HISTORICAL NARRATIVE OF TORTS........................................................................................................1100
CONCLUSION........................................................................................................1107
INTRODUCTION
In Latin, the phrase res ipsa loquitur means "the thing speaks for itself." In the law, few concepts have created more confusion among scholars and practitioners than the evidentiary doctrine of res ipsa loquitur. Commentators have attempted to characterize the phrase alternatively as a rule, principle, doctrine, maxim, and for one particularly frustrated scholar, a myth. Likewise, res ipsa loquitur has resisted all attempts by legal authorities to delineate its scope. In the words of another eminent, but exasperated, scholar, res ipsa loquitur "is used in different senses[;] . . . it means inference, it means presumption, it means no one thing-in short it means nothing."2 Nonetheless, the maxim has appeared in thousands of cases since its first articulation in the mid-nineteenth century and shows no signs of leaving the legal lexicon. The most widely accepted interpretations of res ipsa loquitur include3: (1) that it creates a permissible inference of negligence for a jury in situations where a plaintiff can only show that an injurious event occurred; (2) that it presents a rebuttable presumption requiring a jury to find for a plaintiff in the absence of exculpatory evidence from the defendant; or (3) that it forces an affirmative shift in the burden of proof from plaintiff to defendant.4
Abundant scholarship exists debating the nature of res ipsa loquitur, due in large part no doubt to the deep ambiguities that continue to shroud the doctrine. Perhaps the only aspect of res ipsa loquitur which has not spawned heated intellectual and juridical debate has been the doctrine's origin. The minimal historical inquiry into res ipsa's roots may be related to the unambiguous and overt way in which the phrase "res ipsa loquitur" entered the English common law of torts.
Nearly all commentators agree that the first use of the colloquial Latin tag in the negligence context came in the 1863...