2014 CO 78
Colo.2014Background
- Plaintiff Carolyn Harner sued Dr. James Chapman for malpractice after her husband died hours after an angiogram; she relied on res ipsa loquitur to create a presumption of negligence.
- At trial, the court instructed the jury on res ipsa loquitur but refused to tell the jury that the doctrine shifts the burden of proof to the defendant to prove non-negligence by a preponderance.
- The jury found for Chapman; the court of appeals reversed, holding the trial court erred by not giving a Weiss-based burden-shifting instruction and remanded for a new trial.
- The Colorado Supreme Court granted certiorari to resolve the tension between Weiss v. Axler (which treated res ipsa loquitur as shifting the burden of proof to the defendant) and Colorado Rule of Evidence 301 (which treats presumptions as shifting only the burden of production).
- The Supreme Court concluded Colorado precedent was conflicted, analyzed extra-jurisdictional authority and policy, and decided CRE 301 governs res ipsa loquitur.
- The Court overruled Weiss to the extent it held the burden of proof shifts, holding res ipsa loquitur creates a rebuttable presumption that shifts only the burden of production; the burden of proof remains on the plaintiff.
Issues
| Issue | Plaintiff's Argument (Harner) | Defendant's Argument (Chapman) | Held |
|---|---|---|---|
| Effect of res ipsa loquitur on burdens | Res ipsa creates a compulsive presumption that shifts burden of proof to defendant to show non-negligence by preponderance (Weiss) | Res ipsa is a rebuttable presumption under CRE 301 that shifts only burden of production; plaintiff retains burden of persuasion | CRE 301 controls: res ipsa creates a rebuttable presumption that shifts burden of production to defendant but not the burden of proof, which remains with plaintiff |
| Whether Weiss remains binding after CRE 301 adoption | Weiss remains good law; res ipsa uniquely shifts persuasion burden | CRE 301 supersedes Weiss; res ipsa is evidentiary, not substantive | Weiss overruled to the extent it required shifting burden of proof to defendant |
| Appropriate jury instruction when res ipsa applies | Jury must be instructed that defendant must prove non-negligence by preponderance | Jury may be instructed that presumption is to be weighed with all evidence; defendant need only rebut (produce evidence) | Trial courts should follow CRE 301 framework; burden-shifting instruction per Weiss is erroneous |
| Whether res ipsa is substantive right preventing CRE 301 application | Res ipsa provides a substantive right to burden shift, so rule of evidence cannot alter it | Res ipsa is an evidentiary rule; CRE 301 applies and does not affect substantive rights | Court held res ipsa is evidentiary; applying CRE 301 does not impair substantive rights |
Key Cases Cited
- Weiss v. Axler, 328 P.2d 88 (Colo. 1958) (held res ipsa loquitur shifted burden of proof to defendant)
- Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo. 1991) (characterized res ipsa as a rebuttable presumption)
- Kendrick v. Pippin, 252 P.3d 1052 (Colo. 2011) (discussed res ipsa elements; did not resolve burden allocation)
- Krueger v. Ary, 205 P.3d 1150 (Colo. 2009) (described general effect of rebuttable presumptions)
- Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo. 1980) (noted CRE 301 and contrasted Weiss)
- Ochoa v. Vered, 212 P.3d 963 (Colo. App. 2009) (court of appeals recognized the conflict and deferred to supreme court)
- Sweeney v. Erving, 228 U.S. 233 (U.S. 1913) (U.S. Supreme Court rejection of burden-of-proof shift by res ipsa)