Del. R. Evid. 304

As amended through September 30, 2024

Rule 304 - Res ipsa loquitur

(a)Definitions.

(1) Res ipsa loquitur is a rule of circumstantial evidence that permits, but does not require, the trier of fact to infer negligence based on the occurrence of an accident under the circumstances set forth in paragraph (b) of this rule. Res ipsa loquitur does not affect the burden of proof.

(2) As used in this rule, "plaintiff" includes any party who invokes the doctrine, and "defendant" includes any party against whom the doctrine operates.

(b)Applicability. Res ipsa loquitur may apply when all of the following circumstances exist:

(1) The accident must be one that in the ordinary course of events does not happen if those who have management and control use proper care;

(2) The facts warrant an inference of negligence of such force as to call for an explanation or rebuttal from the defendant;

(3) The thing or instrumentality that caused the injury must have been under the management or control (not necessarily exclusive) of the defendant or his servants at the time the negligence likely occurred; and

(4) Where the injured person participated in the events leading up to the accident, the evidence must exclude his own conduct as a responsible cause.

(c)When Applicability Determined; Effect.

(1) Whether or not res ipsa loquitur applies should be determined at the close of the plaintiff's case.

(2) When res ipsa loquitur applies, the defendant is not entitled to a directed verdict unless evidence has been produced that will destroy or so completely contradict the inference of negligence on the defendant's part that the jury could not reasonably accept it. The defendant is not entitled to a directed verdict merely because the defendant has introduced evidence in explanation and that evidence has not been rebutted.

Del. R. Evid. 304

Amended November 28, 2017, effective 1/1/2018.

Comment

This rule is not contained in F.R.E. or U.R.E. It does restate and codify the existing Delaware law.

This rule restates existing Delaware case law. The res ipsa loquitur doctrine is merely a rule of circumstantial evidence. Delaware Coach Co. v. Reynolds,

Del. Supr., 71 A.2d 69 (1950); Skipper v. Royal Crown Bottling Co., Del. Supr., 192 A.2d 910 (1963); Hopkins v. Chesapeake Utils. Corp., Del. Super., 290 A.2d 4 (1972). The doctrine does not give rise to a presumption, but is only an inference of negligence. Delaware Coach Co. v. Reynolds, supra; Scott v. Diamond State Tel. Co., Del. Supr., 239 A.2d 703 (1968); Vattilana v. George & Lynch, Inc., Del. Super., 154 A.2d 565, 567 (1959). The pleading of specific acts of negligence does not preclude reliance on the doctrine. Vattilana v. George & Lynch, Inc., supra; Hopkins v. Chesapeake Utils. Corp., supra. Before the doctrine will apply, 5 elements must be present:

(1) The circumstances must show that the accident would not ordinarily have occurred if those who had management and control of the instrumentality had used proper care. Delaware Coach Co. v. Reynolds, supra; Skipper v. Royal Crown Bottling Co., supra; National Fire Ins. Co. v. Pennsylvania R.R., Del. Super., 220 A.2d 217, 220 (1966); Vattilana v. George & Lynch, Inc., supra; Hopkins v. Chesapeake Utils. Corp., supra; Dillon v. GMC, Del. Super., 315 A.2d 732 (1974), aff'd, Del. Supr., 367 A.2d 1020 (1976); Phillips v. Delaware Power & Light Co., Del. Super., 202 A.2d 131 (1964). Expert testimony may be required to show the degree of care required. Hornbeck v. Homeopathic Hosp., Del. Super., 197 A.2d 461, 463 (1964).

(2) The instrumentality causing the accident must have been under the control of defendant. Skipper v. Royal Crown Bottling Co., supra; Vattilana v. George & Lynch, Inc., supra; Slovin v. Gauger, Del. Super., 193 A.2d 452 (1963). Exclusive control is not required, however. Delaware Coach Co. v. Reynolds, supra; Phillips v. Delaware Power & Light Co., supra; Ciociola v. Delaware Coca-Cola Bottling Co., Del. Supr., 172 A.2d 252, 259 (1961); Skipper v. Royal Crown Bottling Co., supra.

(3) The doctrine applies only where direct evidence of negligence is absent and unavailable. Vattilana v. George & Lynch, Inc., supra; Slovin v. Gauger, supra; Dillon v. GMC, supra; Scott v. Diamond State Tel. Co., supra; Ciociola v. Delaware Coca-Cola Bottling Co., supra.

(4) The accident must not be the fault of plaintiff. Dillon v. GMC, supra; Hopkins v. Chesapeake Utils. Corp., supra; National Fire Ins. Co. v. Pennsylvania R.R., supra.

(5) There must be a causal connection between defendant's act or omission and the accident. Vattilana v. George & Lynch, supra; Skipper v. Royal Crown Bottling Co., supra; Wilson v. Derrickson, Del. Supr., 175 A.2d 400 (1961); Ciociola v. Delaware Coca-Cola Bottling Co., supra; National Fire Ins. Co. v. Pennsylvania R.R., supra; Dillon v. GMC, supra.

The applicability of the doctrine should be determined at the close of plaintiff s evidence. Delaware Coach Co. v. Reynolds, supra; Dillon v. GMC, supra. The jury or judge may find against the plaintiff even though the doctrine is present. Hornbeck v. Homeopathic Hosp., supra; Scott v. Diamond State Tel. Co., supra. The law of the place where the injury occurred determines whether res ipsa loquitur will be applied. Hopkins v. Chesapeake Utils. Corp., supra.

The doctrine has also been applied in Williams v. General Baking Co., Del. Super., 98 A.2d 779 (1953); Dickens v. Horn & Hardart Baking Co., Del. Super., 209 A.2d 169 (1965). See also 6 Schwartz, Trial of Accident Cases, §§6169, 6171, 6173.

This comment is based on Schwartz, Res Ipsa Loquitur in Delaware, 4 Del. Law Forum 3 (1978).

D.R.E. 304 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. There is no intent to change any result in ruling on evidence admissibility.