Politz, Henry A.

English

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Louisiana Law ReviewVolume 18 | Number 2February 1958Torts - Injury While Sport Fishing - Res IpsaLoquiturHenry A. PolitzThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationHenry A. Politz, Torts - Injury While Sport Fishing - Res Ipsa Loquitur, 18 La. L. Rev. (1958)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol18/iss2/15LOUISIANA LAW REVIEWonly; the burden of' proving a better- title than the, defendant inorder' to" win. 18 However, the trend of later cases- has been. toimpose on. the- plaintiff as great. a burden of proof as- he -wouldbear in a. petitory, action, that is, the burden of proving a- validtitle in himself.14 The .confusion of the action to. establish titlewith the petitory action, has' beclouded: the evident', purpose. ofAct'. 38 of 1908 - to relieve the.claimant, of having, to bear' asgreat, a) burden of proof when his, adversary isnot in possessionaszwhen the. adversary is in possession of the property in ques-tioni. Otherwisej if, the-burden of proof were to remain the sameasthat required. of' the~plaintiff in' a-petitory action, it is' difficultto see. what. practical: purpose:. the' act has!. served. Should. thecourt: have- occasion to: re-examine its position regarding. thismatter,. it'is suggested. that,the act be. considered. ini the light ofits original purpose.Patsy Jb M6Dowell:TORTS -NJRY' WHILE SPORT FISHING -. RES IPSA LOQUITUR,Plaintiff- was-injured by a lure: cast, by' defendant while bothparties, were- fishing from' a. boat. In a- suit. against; defendant:and his: liability insurer the:plaintiff! alleged negligence: in speci.,fied. respects. Defendant denied negligence- and, pleaded, in the'alternative7 that, .plaintiff had assumed the risks: incident-to thesport. The testimony of both parties was equally unilluminating.Plaintiff testified that he did not know what had happened, hadseen, nothing, and defendant testified that he knew only that he.had. made. an. overhand- cast-and, feeling an. obstruction, turned.tosee.the hooks lodged' in.plaintiff's cheek. In denying recoveryfor negligence, the trial court. held- that plaintiff had failed toprove his case with the required certainty.' On appeal, plaintiffconceded, this failure but urged that recovery was neverthelessin order under the doctrine of' res ipsa loquitur. The court of.13: See the expressions of the court in support of this view: Metcalfe v. Green,140 La; 950, 74 So. 261 (1916) ; Baltimore v. Lutcher, 135 La. 873i 66 So. 253('1914)'; Quaker Realty Co. Praying for Confirmation of Title, 10 Orl. App: 79(La. App.' 1914) . See also Doiron v. Vacuum Oil Co., 164 La. 15, 113 So. 748(1927) ; Ellis v. Louisiana Planting Co., 146 La. 652, 83 So. 885 (1920).14. See Albritton v. Childers, 225. La. 900, 74 So.2d 156, (1954) ; Stockstill' v;Choctaw Towing'Corp., 224 La. 473, 70 So.2d 93 (1953) ; Dugas v. Powell, 197La. 409, 1 So.2d 677 (1941).1. Plaintiff' recovered $154,65, covering medical and. hospital expenses dueunder policy provisions establishing compensation for injury- to another, resultingfrom insured's activities.364' [Vol. XVIIIIappeal, 'held, :amended ;and ;affirmed. 2 The -doctrine .of res ipsalloquitur; is iapplicable; and, 'inasmuch las the :defendant :failed -todischarge'the, duty of showing:his freedom from:negligence, theplaintiff must recover. Thedoctrine of assumption -of risk fdoesnot-require that one taking parttin :a-fishing venture.assumetherisk of .injury resulting solely from, another's negl.igence. *Ha-wayek v. Simmons, 91 So.2d 49 (La. App. 4956).-In most -cases in -Which ,recovery -is predicated ,on ;another's-negligence, -pro6f- of-such negligence iis'based largely -on -circum--Stantial evidence. 'The trier willusually determine the:issue ofnegligence by weighing'the probabilities which sarise from ithe-facts:presented.3 However,'in;many:cases tthe plaintiff does .not!have-adequate -information about how; the incident -occurred, -andithe, defendant cannot-or willnot -disclose .the 'circumstances. In,this situation the trier is -not;presented ,with the particular .actsof defendant upon which to ibase 'a determination :of the rproba-bilities of negligence. In that area in 'which; a rational :mindcan,determine from. common experience and 'aconsideration ,of the-fact of the occurrence alone that .the. ini ury.;sustained As tmore.likelythan not a.result of defendant's negh'gence,the :doctrineof.res ipsa loquitur is often. applied.4 The. doctrine,. however, -is .nota solvent to be automatically applied. 5 It does not establish or'2. -Affirmed as to medical -and hospital expenses. and amended. to, include anaward of $1500 under-the negligence liability provisions of the policy.3. i2 HARPER -& 'J aiS, TE'LAw OF"TORTS"§' 19.3 "(1956) ; "Paossaa, 'H-slD-'BOOK OF THE LAW ".OF TORTS §'42 (2d 'ed. 1955) ; Malone, .Re$ Ipsa -Loquitur-attd"Proof by 'Inference - A 'Discussion of ' the - Louisiana 'Cases, 4 L OTJSIANA LAwREv Ew 70 ,i(1941). As, to .prodf .ofa fact by circumstantial evidence,'see I IWIo-4'MORE, .EVHENCE .§ 25 :(3d ed.'1940).-.4. 2 'HARPER. & Jk "s;'THE LAw OF ToRTsl 1945 (1956) ;.1PROSSsR, .HA1DnOOX,OF THE.LAW OF TORTS §842, (2d ed.t1955) :"'In the:situation, to which.-res, ipsa:.lo-,quitur as a distinctive.rule, applies, thereis no evidence,.circumstantialor-otherwise,at least none of sufficient probative value,.to show. negligenceiapart from: the,,postu-late -which. rests on -common experience and, not, on ..the, specific circumstancesof. the instant case -. that. physical. cause of .the .kind which produced. the.,accidentin question.do not ordinarily exist in the absence of negligence." .Annot,,.59.A.L.R.468, 470 (1942). There.are three conditions which are often stated as essential'for the application of "this doctrine: (1) the accident'.must have;.been of :such..a-nature as would-not normally. occur without. someone's negligence; '(2) Ahe defend--ant must have'had control of the injuring instrumentality at the:time of the in-jury; and (3) 'the accident must not-have-'been, due -to- any.action"orcontribution'of the'plaintiff. .It ishighlydoubtful'that, these-conditions must-be-met at all,-timesbefore the doctrine will be applied. See 2 HARPER & JAMES, THEILAw"or'TORTS§§ 19.5, 198' '(1956) ;'.Malone, ResIpsa Loquitur and Proof"by Inference - A'Dis-oussion of the *Louisiana Cases, ,4 'LOuiSIANA LAw REvrXw '70 (1941') ;"Pr oseer,'The Procedural Effect of :Res Ipsa Loquitur, 20 MINN.'L.' REv. '241' (1936).5. 'If that 'phrase had-not been-in Latin,'nobody would have cailld..ita.prin-'ciple"' 'Lord 'Shaw 'in, Ballard v. North *British: Ry., fSess. Cas,,(H.L. '43 '("1923).Accoiding to'.Dean'-;Prosser 'the 'phrase is" an.6ffspring6fUa' casual word,'ofBaron"P6llaek, during 'argument 'with couns'el'-in Byrne''v. 'Boadle, 2 H. & 'Co."722, 159Eng. Rep. 299 (Ex. 1863). Dean Prosser would 'prefer* that 'this !'tag," 4'iih19581 NOTES :865LOUISIANA LAW REVIEW [Vol. XVIIIdelimit a distinct area of the law of negligence but is rather aninstrument of judicial expression which, to be understood, mustbe viewed in the light of the circumstances surrounding its use.A survey of the cases which seem to invite a consideration of thisdoctrine indicates that the fact of admitting or denying its ap-plicability reflects the courts' attitude toward the administrationof negligence liability in particular fact situations. One factorwhich appears to influence a court's decision heavily as to theapplication of res ipsa loquitur under given circumstances is thevalue to society of the defendant's activity.' Where the injury iscaused by an activity which is of little benefit to or presents aserious threat to society,6 a court is more apt to apply this doc-trine. For example in a case involving firearms which presenta serious threat to society with little off-setting value, a courtwill readily apply res ipsa loquitur, thereby requiring little byway of positive proof of defendant's negligence. 7. Conversely,except in the most flagrant cases a court will reject the applica-tion of res ipsa loquitur in medical malpractice suits.8 As thevalue of the activity to society increases, or the risks entaileddecrease, the likelihood of a finding of negligence lessens. Thestandard of care in a particular situation - the threshold ofleads only to confusion, "be consigned to the legal dustbin." Prosser, The Pro-cedural Effect of Res Ipa Loquitur, 20 MINN. L. REV. 241, 271 (1936) : "It addsnothing to the law, has no meaning which is not more clearly expressed for us inEnglish, and brings confusion to our legal discussions. It does not represent adoctrine, is not a legal maxim, and is not a rule." Bond, C.J., dissenting in Po-tomac Edison Co. v. Johnson, 160 Md. 33, 40, 152 Atl. 633, 636 (1930).6. 2 HARPER & JAMES, THE LAW OF TORTS 1084, § 19.6 (1956); Jensen v.Minard, 44 Cal.2d 325, 328, 282 P.2d 7, 8 (1955) : "To put the matter anotherway, the amount of caution required by the law increases, as does the danger thatreasonably should be apprehended. . . . What ordinary care is in any particularcase depends upon what the circumstances are."7. Jensen v. Minard, 44 Cal.2d 325, 327, 282 P.2d 7, 8 (1955) : "[O]wing tothe dangerous character of the instrumentality ordinary care in the use of fire-arms requires a very high degree of caution." Recovery allowed in all of the fol-lowing: Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) ; Adams v. Dunton,284 Mass. 63, 187 N.E. 90 (1933) ; Winans v. Randolph, 169 Pa. 606, 32 Ati. 622(1895) ; Harper v. Holcombe, 146 Wis. 183, 130 N.W. 1128 (1911) ; Underwoodv. Hewson, 1 Strange 596, 93 Eng. Rep. 722 (K.B. 1891). See Inbau, Firearmsand Legal Doctrine, 7 TuL. L. REV. 529, 551 (1933) for an extensive survey ofhunting accidents.8. Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520 (1953) (no recovery for un-fortunate choice of wrong method of treatment) ; Meador v. Arnold, 264 Ky. 378,94 S.W.2d 626 (1936) (mistaken diagnosis alone not sufficient for recovery). Re-covery was allowed in the following: Nelson v. Painless Parker, 104 Cal. App.770, 286 Pac. 1078 (1930) (dropped tooth down windpipe) ; Evans v. Roberts, 172Iowa 653, 154 N.W. 923 (1915) (cut off piece of patient's tongue during operationon adenoids) ; Lewis v. Casenburg, 157 Tenn. 187, 7 S.W.2d 808 (1928) (extremeX-ray burns resulting in death).NOTESnegligence- may depend in great measure upon an evaluationof this factor.9In many cases, such as the instant case, another factor, seem-ingly opposed to the one discussed above, comes in for considera-tion. This further element arises when both parties are engagedin an activity wherein there exists a mutuality or reciprocity ofrisk. Where each party is exposing the other to the same hazardsand it is a mere matter of chance that the plaintiff is injuredrather than the defendant, the courts, moved by a sense of fairplay, are less disposed to consider as negligent conduct whichmight otherwise be so viewed. 10 For example, where two golfersare each exposing the other to the same risks the tendency is todeny recovery for injury resulting from risks commensuratewith the sport." The courts will require a greater showing ofaffirmative proof of the defendant's negligence, and are appar-ently not as prepared to infer such negligence from the fact ofthe occurrence alone. This is to be contrasted to cases involvinga plaintiff-caddy and a defendant-golfer in which recovery isgenerally allowed without such an affirmative showing.12 Thiswould appear to indicate the courts' readiness to appreciate theone-sidedness of the risk in resolving the issue of negligence, forthe caddy does not in turn expose the golfer to the risks to whichthe golfer subjects him.In the instant case the court was of the opinion that therights of a person injured in an accident in which the cause is9. For an able discussion of the various factors involved and their effect inthe determination of negligence, see Terry, Negligence, 29 HARv. L. REV. 40(1915).10. In its treatment of this area the court may achieve the same result viatwo different methods: it may refuse to apply the doctrine and require that theplaintiff show the defendant's negligence by facts other than the mere fact of theoccurrence of the incident, or may allow application of the doctrine but hold thatthe plaintiff assumed the risks of injury.11. Houston v. Escott, 85 F. Supp. 59 (D. Del. 1949); Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 677 (1950) ; Benjamin v. Nern-berg, 102 Pa. Super. 471, 157 AtI. 10 (1931). However, recovery has been allowedfor breaches of the generally recognized rules of the game, such as a party's fail-ure to precede his drive with the-customary warning of "Fore": Getz v. Freed, 377Pa. 480, 105 A.2d 102 (1954) ; Alexander v. Wrenn, 158 Va. 486, 164 S.E. 715(1932).12. Biskup v. Hoffman, 220 Mo. App. 542, 287 S.W. 865 (1926) ; Toohey v.Webster, 97 N.J.L. 545, 117 AtI. 838 (1922) ; Povanda v. Powers, 272 N.Y. Supp.619, 152 Misc. 75 (1934) ; Simpson v. Fiero, 260 N.Y. Supp. 323, 237 App. Div.62 (1932) ; Gardner v. Heldman, 82 Ohio App. 1, 80 N.W.2d 681 (1948). Contra:Stober v. Embry, 243 Ky. 117, 47 S.W.2d 921 (1932) (caddy watching but care-less) ; Page v. Unterreiner, 106 S.W.2d 528 (Mo. App. 1937) (player careful,caddy careless). For interesting articles on golfing cases see Clothier, Negligencein Golf, 9 TEMP. L.Q. 42 (1934) ; Note, Negligence - Golf - Liability Players andCourse Operators, 11 N.Y.U.L.Q. REV. 452 (1934).1958]LOUISIANA LAW REVIEWutnknoWn to him'must:be!protected. The court,:assuming that thedefendant was aware of his own acts, placed upon him'the bur-den of proving himself -free from -negligence.18 The -court wasof the furtheropinion that in the absence of.-such proof the acci-,dent could only-be -presumed to have been a'result of fault on thepart of the defendant and therefore recovery was in order. Thedecision appears to be supported by the "benefit to -society" fac-'tor discussed above, as sport fishing is not impressively benefi-'cial to society. Evidence of a- consideration of the isecond'factordiscussed, mutuality of :risk, is not as apparent in the decision.In'rejecting the defendant's plea'of assumption of rHsk, the cour-tstated -that -whereas ,one participating in 'a sport -assumes all--risks, commensurate with, that: activity one does not assume the'risk-.of an injury resulting solely from defendant's 'want'of care.-In the instant case this is mislea'dingIfor the -defendant's -ne~li-igence was not' established by. affirmative 'pr'6f 'but 'rath'er was,merely-a presumption of law trdsulting from '.the- apllic.'i6n Iof'the doctrine of "res ipsa lo~quitur. Inits. denial df -the 'plea, 6 as-suniption of :risk-the 'court assfumed that'the defen'dant'was -neg-ligent,: th'e 'very inquiry with which it was confroite6d. The'factthat each -party was exposing the other to similr ,-hdzards is -amatter which 'must be given serious consideration 'in dete min-ing what conduct will constitute negligence. 'It'is-interesting -toconsider the nature of the two cases upon which the- court-reliedin support Of its. decision to reject the plea of assumption of risk.In -the lfirst -the -plaintiff -was--an ..employee, -a -caddy, -of -the-de-fendant-4golfer ;14 in the -other the plaintiff, a spectatorat.,a~polocontest, was injured by a player who failed to maintain reason-able control of 'his'horse.'5 In neither of these cases.did.-any, mu--.tuality -of -risk -exist. The instant case :may be 'm're 8dl'selyanalogized to the player-player cases in -golf. in w1hich .recovery-is: usually denied 'due, in part, to the -existence of--a -muit ility ofrisk. The importance 6f'this element in-determining'iability..1or-negligence -has ,been -forcefully :expressed by 'Prfessor 'Vold:"[T] his "mltuality 'of' risk -is one of the great foundation :stoneson which the main structure of the law of negligence has beenerected, and ... withoditit the negligence, doctrine 'oses~its ,at-13. In Louisiana 'there is'no ;procedural .shifting--of the biiden'ofprodf. For-an, excellent -discussion' of this problem 'and' a thorough, commentary ldn Lolaiafiacases, see 'Malone,-"Res Ip'sa LoqtUtur',and 'Prdof by Inferene - A Dioebisaibn bf'the-Louisiana Oases,'4-.LouINA:,LAw'Rtv.yw 70,"84 et seq. 1 (1941).-14. T6bbey'v.'Webster,.97 N.J.L.'545, 117.t1.' 838: (1922).15. Douglas v. Converse, 248. Pa. 232, 93 :,!Atl.-.955 '(1915).368 [Vol. XVIIINOTEStraction as being inherently fair.' 6 "it is submitted that in theinstant case this element of reciprocity did exist, as both partieswere fishing, and it was a mere matter of chance.that the.plain-tiff rather than -the defendant was injured. Therefore the -courtshould have required for recovery an affirmative showing of ahigh degree of deviation from the -norm of fishermen's conduct.However, the -liability insurer of the defendant -was a co-defend-ant, and it is not unlikely that the theory of social absorption ofnegligence liability achieved through the, widespread use of'such-insurance is reflected in'the court's decision.It is interesting to speculate on the outcome of'future similarlitigation. With the increasing amount of 'leisure'time availibleto the average man, hobbies and other modes of recreation'anddiversion will assume more social importance; such activities•may even become' socially imperative. The benefits derived by-society *from sport activities,:therefore, may'receive'wider :appre-"ciation-with a' resulting noticeable: effect upon the -application 'ofnegligence -liability in this -area.Henry A. "Politz'1'6. 'Void, .Aircraft .Operdtors -Liabiity -for Ground Damage .'and -PassengerInjury,,13NEB..L..Bu=. 373, 380 (1934).1958]

Torts - Injury While Sport Fishing - Res Ipsa Loquitur

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Torts - Injury While Sport Fishing - Res Ipsa Loquitur

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