The Colorado Supreme Court today will review a case from the Colorado Court of Appeals, Case No. 11CA2401:
Petitioner: James B. Chapman, M.D.,
Respondent: Carolyn K. Harner.
Here's a summary of the issue to be decided: "Whether the court of appeals erred in holding, based on Weiss v. Axler, 328 P.2d 88 (Colo. 1958), that res ipsa loquitur shifts the burden of proof to the defendant despite the adoption of C.R.E. 301, which provides that 'a presumption . . . does not shift . . . the burden of proof.'"
In Weiss, poor "Ida Axler received a certain permanent cold wave from Floyd's Beauty Salon. The wave was administered by Clara Maxson, a beautician employed by the Salon. After the administration of the permanent wave, Mrs. Axler sustained a loss of hair on the frontal portion of her scalp."
The Colorado Supreme Court noted:
The maze of decisions in this state regarding the doctrine of res ipsa loquitur results in "confusion worse confounded." Truly, our appellate courts have cumbered the doctrine with loose, inaccurate and contradictory statements to the point that a pruning job becomes imperative so that the doctrine will assume a precise and symmetrical form.
It seems a proper sequitur to say that the more we are removed from "the horse and buggy days," the more intensified and diversified our industrialism, mechanics and science become, the more technology and automation advance, the more the doctrine of res ipsa loquitur should take on a stellar role in the law of negligence. The necessity to remove existing confusion and to state a formulary for the use of the doctrine thus appears obvious.
The Weiss court held: "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."
Is the presumption in a res ipsa case the kind of presumption covered by the rule of evidence? Does the burden really shift in a res ipsa case? Or is it more a matter of which way the evidence preponders after both parties have had their say? Let's pray we don't get more confounded confusion. Keep an eye on this case!