Lead Opinion
These four consolidated actions were brought to recover damages for the death of the pilot and three passengers of a Bell Jet Ranger helicopter that crashed in the Gulf of Mexico. Plaintiffs sought recovery from Mobil Oil Company, who owned and operated the helicopter, and Bell Helicopter Company, who manufactured it. Mobil cross-claimed against Bell for the cost of the aircraft and for indemnity as to any amounts it might be required to pay to the individual plaintiffs. The district court held Mobil liable for the death of Higginbotham, one of the passengers, under the Death On the High Seas Act
I.
The chief contentions raised in this court concern the district judge’s (1) exculpation of Bell, (2) his application of res ipsa loquitur in finding Mobil liable to Shinn’s and Higginbotham’s representatives, and (3) his ruling as to passenger Nation. The parties also raise a number of subsidiary issues that require discussion. Nevertheless, the facts of the case are fairly straightforward. Mobil used the Bell-manufactured helicopter as an airborne crewboat, ferrying workmen to and from offshore drilling sites. On August 15, 1967, sometime between 3:30 and 4:00 o’clock in the afternoon, the aircraft took off from Baxter Rig No. 3 with all four decedents aboard. When it failed to arrive at its scheduled destination a search was instituted, and the searchers soon discovered wreckage from the helicopter floating several miles from the craft’s point of departure. Only a few pieces of the Jet Ranger were recovered, no one witnessed its crash, and no bodies were ever recovered. There had been no radio communication with the helicopter before its disappearance.
II.
The individual plaintiffs (and Mobil) contend that the district judge erred in holding that no case was made out against Bell. At trial they relied upon three different types of evidence to establish Bell’s liability. First, they introduced the testimony of two “aircraft crash reconstruction” experts. These witnesses testified, in substance, that all physical evidence available — including the allegedly inverted position of the helicopter when it hit the water, the pattern of damage to the recovered portions of the craft, and the position of the tailboom almost one-half mile from the remainder of the wreckage — indicated, or was consistent with the theory, that the tailboom separated from the helicopter in mid-air causing it to plummet out of control into the water. Second, to give some substance to their mid-air separation theory, plaintiffs (and Mobil) introduced the testimony of metallurgists who stated that in their opinion the portion of the tailboom that was recovered contained a fatigue crack. From this crack, these witnesses theorized, a tension crack propagated over nearly the complete circumference of the boom, resulting in compression at the top of the boom and eventually a complete tearing off of the tail from the rest of the helicopter. Finally, plaintiffs (and Mobil) adduced evidence showing that the helicopter involved in the crash was of a new design and that repeated complaints concerning cracks appearing in the tails of these new aircraft compelled Bell to change the alloy used in the tail-boom from magnesium to aluminum.
In brief summary, Bell’s witnesses disputed the existence of any fatigue cracks in the tailboom, argued that the Jet Ranger represented the highest state of the art, and asserted that the cracks reported by other users of this model helicopter were viewed by Bell and most owners of the craft as a maintenance nuisance rather than a safety hazard. Bell’s experts also offered explanations other than mid-flight separation of the tailboom for the pattern of damage to the recovered portions of the Jet Ranger.
The district judge weighed this testimony and entered the following findings of fact:
The evidence does not establish that a fatigue fracture occurred in the tailboom . [and] is not sufficient to establish that an inflight separation of the tailboom caused the crash . . . . In fact, evidence is so insufficient that no actual, probable or suggestive cause of the crash . . . [can] be determined with any degree of certainty.
Their reasoning goes something like this. The district judge stated that “the case of plaintiffs and Mobil against Bell hinges entirely on the validity of its metallurgists experts . . . [T]he testimony of their other witnesses is principally corroborative . . . .”
Notwithstanding our respect for the ingenuity of plaintiff’s theory, we cannot accept it.
Second, plaintiffs fail to understand that the judge’s finding that no mid-flight separation took place goes primarily to causation and only circumstantially to
The burden of proving causation is on the plaintiff . . . and causation must be established under the doctrine of strict liability, as well as under ordinary negligence.
In re Marine Suplhur Queen, 2 Cir. 1972,
Plaintiffs do not rely solely on their mistake of law attack on the findings of fact, however. They also allege numerous errors in the district court’s factual deductions, any one of which if established, they contend, would render the findings clearly erroneous. The voluminous record in this case plainly prevents us from summarizing and analyzing all of these evidentiary challenges. Nevertheless, we have carefully ex
III.
Having eliminated Bell from the liability picture, the district court proceeded to inquire whether the individual plaintiffs had proved a case against Mobil. After considering the evidence in some detail the court concluded that the accident could not be attributed to any specific derelictions by that company. Nevertheless, aided by the
Over thirty years ago this court addressed similar questions. In Morrison v. LeTourneau Co., 5 Cir. 1943,
The doctrine of res ipsa loquitur cannot apply in cases of this sort, because there is no showing that accidents of this very nature cannot happen to the most skillful pilots in planes of the finest type and condition. Even if the doctrine of res ipsa loquitur were applicable, there would be the impossibility of determining the defendant against whom the rule should be applied, since the two defendants are charged with separate and distinct acts of negligence. Would the jury be permitted arbitrarily to find that because a wing broke under the circumstances the Flying School furnished a defective ship, or that the ship was negligently operated by the LeTourneau Company? The doctrine of res ipsa loquitur does not supply the material answer that is requisite. Neither does the evidence. It was wholly impossible for the jury to have determined from the evidence, and the inferences reasonably to have been drawn therefrom, either that the ship was defective or that it was negligently operated by LeTourneau. If the proven facts give equal support to each of two inconsistent inferences, then neither is established, and “judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover”.
A.
The applicability of res ipsa to any species of accident depends in the first instance upon whether the mishap is of a type that ordinarily does not occur in the absence of negligence. As this court noted in an early case refusing to apply res ipsa to the explosion of a jet engine:
Res ipsa loquitur is a rule based upon human experience and its application to a particular situation must necessarily vary with human experience. A situation to which the doctrine was not applicable a half century ago because of insufficient experience or lack of technical knowledge, might today fall within the scope of the rule, depending upon what experience has shown.
Williams v. United States, 5 Cir. 1955,
B.
Mobil also argues, however, that “the application of res ipsa to one defendant and not to another requires that the circumstances surrounding the injury render it more probable that the injury was due to that defendant’s negligence, than that of the other defendant.” (Mobil Brief at 21 — 22). We entertain no doubt that this contention correctly states the law. See, e. g., Dowdell v. U. S. Industries, Inc., 6 Cir. 1974,
For example, in Colditz v. Eastern Airlines, Inc., S.D.N.Y.1971,
Even more in point is a recent decision by the Supreme Court of Texas. Plaintiffs sued Mobil Chemical Company for injuries they received when a pipeline safety valve at a Mobil plant ruptured and allowed acetic acid vapor to escape into the atmosphere. Plaintiffs were working near the site of the rupture and inhaled the vapor, causing the respiratory damage for which they sued. To establish Mobil’s negligence, plaintiffs relied upon res ipsa. Mobil responded by adducing testimony indicating that the cause of the rupture was a structural defect in the valve — for which the valve’s manufacturer, if anyone, would be liable. The Texas court wrote:
While the jury was certainly entitled to believe . . . [Mobil’s] explanation, it was not compelled to . . . . Since the same mechanism had worked properly the day before, the jury could have concluded that any structural weaknesses were more probably caused by Mobil’s maintenance personnel . . . than by causes prior to Mobil’s control of the Unit. The jury also could have believed that Mobil’s testing procedures were inadequate or negligently followed if it did not discover such structural weaknesses before pumping acid at high pressure through the system. In short, the jury could still reasonably infer from the circumstances of the accident that the accident was probably caused by Mobil’s negligence.
Mobil Chemical Co. v. Bell,
In the instant case the district judge noted the evidence of (1) slipshod inspection practices by Mobil mechanics, (2) flights by Mobil pilots in excess of the recommended maximum airspeed for the helicopter, and (3) past “hot-rodding” by the Mobil pilot who died in this crash. Although he could not attribute the accident to any one of these causes, Judge Scott concluded that as to Mobil “the total effect of the evidence, affords a reasonable inference of fault.”
In any event, we may reverse the lower court’s finding of negligence only if we are convinced that it is clearly erroneous. See Kennedy v. Henderscheid, 5 Cir. 1973,
IV.
The representatives of James Nation, another passenger who died in the crash of the Jet Ranger, urge us to reverse the lower court’s holding that they can recover only under the provisions of the Longshoremen’s and Harbor Workers’ Compensation
In Offshore Company v. Robison, 5 Cir. 1959,
assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel.
Our examination of the record discloses uncontradicted evidence (1) that during the two years prior to his death James Nation spent all but a small fraction of his working time on Mobil’s submersible drilling barges, and (2) that Mobil assigned Nation to the fixed platform where he had worked during the week preceding his death as a presumably temporary replacement for a vacationing foreman. The record gives use no cause to believe that Nation’s general pattern of employment would have changed substantially had he lived. Given these circumstances, we think that the undisputed evidence requires a finding that Nation was a seaman despite intermittent temporary assignments to fixed platforms as the course of drilling operations required.
Y.
The representatives of Shinn and Higginbotham argue that the district court erred in certain respects concerning its determination of the amount of damages to which they were entitled.
More difficult is the question whether the district court erred in using a 5% annual straight line estimated salary
Our cases appear conclusive on this problem. For example, in Petition of Canal Barge Co., N.D.Miss.1971,
[Plaintiff’s decedent] might have reasonably anticipated certain increases in his future earnings; such increases may fairly be calculated at the rate of 2% per year to the end of his work-life expectancy, which is to be also discounted .
Id. at 814. On appeal this court initially approved the 2% factor, but treated it as a recovery for the “anticipated annual increase in the cost of living.” Canal Barge Co. v. Griffith, 5 Cir. 1973,
The wages of one performing the type of work that plaintiff was performing at the time of the accident in issue is likely to increase at the annual rate of 4.8% per annum. This percentage of annual increases, in wages was the rate of increase of such wages from 1946 to 1969; and was the rate of annual increases which had held good from the year 1900.
Cost of living increases and inflation would cause an increase in loss of income from the death of Wesley Law at a rate of 2% per year . . . . Wesley Law was reasonably to be expected to increase his income based on the continued rise in his income reflected by his position and income tax returns.
The Third Circuit has recently noted the close relationship between expert testimony purporting to project future pay raises and explicit inflationary considerations: “Although offered in terms of continuing increases in wage rates, as opposed to a continuing decline in the value of the dollar, the testimony in question reflects a continuing inflationary spiral." Hoffman v. Sterling Drug, Inc., 3 Cir. 1973,
Mrs. Higginbotham’s economist arrived at the 5% figure for estimating Marshall Higginbotham’s probable future annual wage increases by calculating the average annual percentage increases in Higginbotham’s salary from the time he began working for Baxter Drilling Company (his employer at the time of the accident) until his death. App. at 2414^15. Included in this calculation was the assumption that Higginbotham, “a very capable tool pusher,” would have maintained his past employment record. Nevertheless, the evidence sheds no real light on the basis of Higginbotham’s past raises — i. e. whether they were cost of living bonuses or rewards for productivity.
As a final point, the representatives of Shinn and Higginbotham allege that because of changes in the law after the district judge decided this case they are now entitled to recover for an element of damages denied them by Judge Scott— namely, loss of society or loss of love and affection. The district court denied recovery for these damages in reliance on Canal Barge Co. v. Griffith, supra. Subsequently, however, the Supreme Court in effect overruled the relevant part of that case by concluding that under the nonstatutory maritime wrongful death action announced in Moragne v. State Marine Lines, 1970,
Judge Scott found that both the Shinn and Higginbotham representatives were entitled to recover under the Moragne maritime wrongful death remedy; he refused to award damages for loss of society only because, as just noted, the law of the circuit at that time was that loss of society was not a compensable item in a Moragne action. In the course of his discussion Judge Scott concluded that Moragne is fully applicable to deaths occurring on the high seas, despite the existence of the remedy provided for by the Death on the High Seas Act.
Affirmed in part; reversed in part and remanded.
Notes
. 46 U.S.C. § 761 et seq. The district judge concluded that admiralty jurisdiction existed over this suit because the accident took place on the high seas and “in conjunction with its extensive offshore activities.”
. 46 U.S.C. § 688. The court found, and defendants do not contest, that Shinn’s work on a drilling barge made him a Jones Act seaman.
. 33 U.S.C. § 901 et seq.
. The district judge’s decision as to Bell naturally also required dismissal of Mobil’s cross-claims.
. It is worth mentioning that our court recently reserved the question whether products liability doctrine should be made a part of the general maritime law. Williams v. Brasea, 5 Cir. 1974,
We recognize, of course, that a number of courts, including several district courts within this Circuit, have permitted admiralty suits based upon either the breach of an implied warranty or strict products liability. See Lindsay v. McDonnell Douglas Aircratt Co., 8 Cir. 1972,
. This misunderstanding explains plaintiffs’ erroneous reliance on Lindsay v. McDonnell Douglas Aircraft Co., 8 Cir. 1972,
Lindsay was a stronger case than this one from the plaintiffs viewpoint. Mrs. Lindsay offered the testimony of a shrimp boat captain that he saw Mr. Lindsay’s plane burning just before it crashed. Here plaintiffs had no direct evidence of mid-air separation of the tail-boom — analogous to the fire in Lindsay — so the trial judge to find Bell liable would have been required to infer not just the defect from the malfunction, but the malfunction itself.
. As earlier noted, plaintiffs cite several items of “accident reconstruction” evidence to support their mid-air separation theory. These include: (1) the routine nature of the flight; (2) the pattern of damage to the recovered portions of the helicopter; (3) the position of the tailboom approximately one-half mile west of the other portions of the wreckage; (4) the allegedly inverted position of the aircraft when it hit the water; and (5) the absence of main rotor strikes on the tailboom.
Without purporting to summarize all of the contrary evidence, and without identifying particular pages in the appendix, the following rebuttal evidence either appears directly in the testimony or is inferable from it: (1) when the helicopter left the drilling rig low level flying conditions in the area were “very poor” due to intermittent showers and thundershowers in the general area; (2) the pattern of damage to the recovered portions of the craft were consistent with a full power crash into the choppy water with resultant tumbling of the helicopter in unpredictable ways; (3) the tailboom may have been either thrown west of the wreckage by the initial impact or blown west by the current and the wind, both of which were westerly; (4) the allegedly inverted attitude of the helicopter when it hit the water may have been attributable either to accidental pilot action or a malfunction in the controls; and (5) the absence of main rotor strikes on the tailboom refutes rather than supports plaintiffs’ theory, because if the boom had torn off as plaintiffs argue it would have unavoidably entered the path of the rotor blades.
. Regarding the existence of a fatigue crack on the tailboom, plaintiffs relied heavily on the testimony of their metallurgists that certain grain deformation typical of tensile-shear failure did not appear in the area on the boom where they argued that the cracking began in fatigue. All of Bell’s witnesses denied seeing any evidence of fatigue, and, as the district judge noted, other physical evidence contradicts the fatigue theory. As for the statement in the opinion that “practically the entire fracture occurred in compression,” we do not view it, as plaintiffs do, as damning evidence of the district judge’s misunderstanding of the metallurgical evidence. Taken in context it is reasonably clear that Judge Scott meant only to say that the extensive areas of compression on the tailboom clockwise between the nine o’clock and 4:30 positions (to which plaintiffs’ witnesses testified, see App. at 639-640) were more consistent with Bell’s “instantaneous static overload” view than with plaintiffs’ “fatigue crack and tear” theory. Moreover, at one point in his testimony one of plaintiffs’ own witnesses stated that the section of the boom discussed by Judge Scott “started failing in compression,” before correcting himself by stating that as a “technical point” no metal fails in compression.
Judge Scott noted his “lack of expertise” in metallurgy. We likewise note ours. Perhaps our judicial system can and should develop better methods for trying difficult questions of scientific or technological fact. See, e. g., Danaher, Piehler, Twerski, & Weinstein, Product Liability: An Interaction of Law and Technology, 12 Duquesne L.Rev. 425 (1974); The Technological Expert in Products Liability Litigation, 52 Texas L.Rev. 1303 (1974). Nevertheless, this case requires decision now and under our present system; we decline to overturn the considered findings of the district judge on the fatigue issue based only upon the simultaneous presence of disputed expert metallurgical testimony and ambiguous cracks. See Danaher, Piehler, Twerski, & Weinstein, supra, 12 Duquesne L.Rev. at 430 n. 11;
. The clearly erroneous standard is of course fully applicable to suits in admiralty. Coulter v. Ingram Pipeline, Inc., 5 Cir. 1975,
. The Restatement (Second) of Torts § 328(D) states, in pertinent part:
(1) It may be inferred that harm suffered by the plaintiff is caused by the negligence of the defendant when .
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence . . (evidence added)
The comment to subsection (b) expands on this idea:
It is never enough for the plaintiff to prove that he was injured by the negligence of some person unidentified. It is still necessary to make the negligence point to the defendant. On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case. Again, however, the plaintiff is not required to exclude all other possible conclusions beyond a reasonable doubt, and it is enough that he makes out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the defendant, (emphasis added)
See also F. Harper & F. James, The Law of Torts § 19.7 (1956).
. Section 4(c) of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1333(c), makes the Longshoremen’s and Harbor Workers’ Compensation Act applicable “with respect to disability or death of an employee resulting from any injury occurring as the result of operations described in subsection (b) of this section . . .” Subsection (b) covers “any operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources ... of the subsoil and seabed of the outer Continental Shelf.” Moreover, we have construed § 1333(c) to apply to injuries occurring as a result of operations described in subsection (b) without regard to the physical situs of the injury. Nations v. Morris, 5 Cir. 1973,
Section 4(c) of the Act also provides, however, that “[fjor the purposes of the extension of the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act under this section — (1) the term ‘employee’ does not include a master or member of a crew of any vessel , . . .” Accordingly, we have held that OCSLA offers no obstruction to recovery by a Jones Act seaman for injuries occurring in connection with subsection (b) operations. Noble Drilling Corp. v. Smith, 5 Cir. 1969,
The implication of these statutes and decisions for Nation’s- representatives is that as against Mobil they may recover damages for their decedent’s death, which occurred as a result of drilling operations on the outer Continental Shelf, only if Nation was a “member of a crew of any vessel,” i. e. a Jones Act seaman. See Noble Drilling Corp. v. Smith, supra, at 954-56.
. Although it is true that a worker does not forever remain a seaman solely by virtue of having once been one, see Desper v. Starved Rock Ferry Co., 1952,
. There can be no question here as to the second element of the Robison test, contribution to “the function of the vessel or to the accomplishment of its mission,”
. That is, Nation plainly was within the scope of his employment.
. We have already approved the district court’s finding that Mobil’s negligence probably caused the crash.
. The district judge’s opinion on damages is reported at
. No similar problem arose as to James Shinn. Mobil, his employer, provided exact information on the pay raises to which he would have been entitled. Even more importantly, Shinn would have retired within a few months of the lower court’s judgment, thus mitigating any difficulties as to post-judgment increases in earnings.
. The salary increases given Higginbotham’s replacement as tool pusher were used by the district court to calculate the decedent’s lost wages from the date of his death until the date of judgment. This evidence arguably eliminated the more troublesome problems concerning the speculativeness of that award. Johnson and the cases following it teach, however, that pre-judgment increases, paid either to the decedent before his death or later to his replacement, may not be applied mechanically to calculate future wage increases, because the employer’s wage policy may be tied to the rate of inflation or to the cost of living index. Cf. Eason v. Weaver, 5 Cir. 1973,
. Contra, Barbe v. Drummond, 1 Cir. 1974,
. If the representatives of James Nation can establish their right to recover under Moragne, their recovery under the Jones Act will not bar an award of damages for loss of society. Landry v. Two R. Drilling Co., 5 Cir. 1974,
Concurrence in Part
concurring in part and dissenting in part:
I agree with Judge Thornberry except for that portion of Part V of his opinion that relates to Higginbotham’s future earnings.
On the res ipsa loquitur point I add the following comments. We do not overrule either Morrison v. LeTourneau,
Many of the cases concern common carriers. Mobil is not a common carrier, but its use of a fleet of helicopters as substitutes for crew boats, regularly moving men and equipment from shore to offshore drilling sites and back again, makes it something very close to a common carrier insofar as analysis of res ipsa is concerned. The ensuing regularity of operation with few significant incidents represents the kind of change in technology which Williams refers to, and it is a change which need not be adduced by specific proof but which judges in their experience may recognize. Judge Holtzoff discussed the change in technology concept in Smith v. Pennsylvania Central,
I dissent from the holding, in part V, that it was error for the trial court to calculate Higginbotham’s future earnings by using 5% annual straight line estimated salary increases. Johnson v. Penrod Drilling Co.,
In innumerable other contexts we accept the events of the past as the basis for an inference as to what the future will hold. Indeed we often insist upon it as the necessary predicate for an opinion respecting the future. Thus, if the plaintiff’s back has hurt for two years since the accident, the doctor is allowed to opine that it will continue to hurt, and we never pause to doubt that this is permissible. We accept, indeed insist upon, projecting life expectancy upon the past record with respect to millions of people, although plaintiff may be (and almost certainly will be) an exception to the projected figure. The examples are endless. Yet we would not permit consideration of evidence that a particular plaintiff had received a $200 per year increase in pay every year for 20 years, unless he could divide it up into “productivity” pay and “economic change pay”. In this single area of projecting future earnings we deny ourselves the best evidence available on the asserted ground that it is not sufficiently reliable, and, in the name of reliability we mandate the artificial conclusion that one will earn the rest of his life what he is earning on the day he is killed or injured. The only thing certain about this is that it is certain to be wrong.
Concurrence in Part
concurring in part and dissenting in part:
I fully concur in Parts I and II of Judge Thornberry’s thorough and well-reasoned opinion. I am unable to concur, however, in the application of the doctrine of res ipsa loquitur made in Part III, and hence would not reach the matters discussed thereafter. In this circuit, the doctrine of res ipsa loquitur applies in an airplane crash ease only if a preponderance of the evidence shows that the particular accident in question would ordinarily not have occurred in the absence of defendant’s negligence.
The opinion of the court below attempts no factfindings about whether at the present time airplane accidents in general ordinarily occur without negligence; moreover, the record contains nothing approaching the comprehensive evidence of a general nature sufficient to support such a conclusion. If the trial court had meant to make such findings on the basis of the discrete evidence in this particular case, they would rest on an evidentiary basis no sounder — and be no more appropriate—
First, as a matter of common sense, it is plain that not all mistakes in judgment are negligent ones. General experience teaches that Hobson’s choices arise in all activities subject to the elements, so that the pilot of a properly-functioning aircraft may take the path that leads to death or injury for himself and his passengers without carelessness. As Judge Tuttle once warned:
It is not true that [an airplane] crashes only if the pilot is negligent. Such crashes may be attributable to many things, such as structural defects, conditions of weather, excusable error in pilot judgment falling far short of pilot negligence, and the like.
United States v. Johnson,
Second, on the procedural side, nothing is more firmly established in this circuit than the principle that decisions by a panel of our court are to be overturned only by the Supreme Court or by the court sitting en banc, not by a later panel. Under LeTourneau, as Judge Thornberry’s opinion avows (Part III, preamble), res ipsa is not presumptively or generally applicable in our circuit to accidents of this nature. And if the conditions of air travel have so improved in the time since LeTourneau as to make it so applicable, it is the en banc court that must say so.
Doubtless the res ipsa doctrine will apply in a proper case where specific findings ruling out non-negligent causes can be and have been made on sufficient evidence. This is no such case. As noted, no evidence supports even a general finding that this particular accident would not ordinarily have occurred without negligence. To be sure, the trial judge ostensibly made such a finding, Higginbotham v. Mobil Oil Corp.,
Even if res ipsa were appropriate, the lower court applied the wrong standard of proof. As the majority opinion points out, an inference that a defendant was negligent is permitted only when the likelihood of all other possible causes is sufficiently low that the factfinder reasonably concludes from a preponderance of the evidence that defendant must have been negligent. Here the finder of fact applied res ipsa after finding only that the evidence as a whole “afford[ed] a reasonable inference of fault.”
Thus, the lower court adopted the wrong standard in applying an inappropriate doctrine. I would reverse on the res ipsa loquitur issue. Since this is not to be, however, I concur in Judge Thornberry’s disposition of the damages questions discussed in Part V of the majority opinion.
. Compare Morrison v. LeTourneau Co.,