48. On the airline's motion to dismiss at the conclusion of the legal representative's case, the court should

Most states have wrongful death statutes, which allow for damages to be awarded based on losses sustained as a result of a decedent's death. An agent of the decedent typically brings the action, and it generally allows recovery for economic support survivors would have received had the accident and death not occurred, or for the pecuniary value of household services that the decedent performed. Today, recovery is often allowed for loss of companionship, sexual intercourse, and moral guidance.

The doctrine of res ipsa loquitur («the thing speaks for itself») deals with situations where the mere fact that an injury occurred can establish or tend to establish a breach of duty. Where the facts strongly indicate that the plaintiff's injuries resulted from the defendant's negligence, the trier of fact may be permitted to infer that the defendant was probably negligent. Res ipsa loquitur requires the plaintiff to show: (i) an inference of negligence (i.e., that the accident causing the injury is the type that would not normally occur unless someone in the defendant's position was negligent); (ii) negligence attributable to the defendant (i.e., evidence that this type of accident normally happens because of negligence, such as that the instrumentality that caused the injury was in the defendant's exclusive control); and (iii) that the plaintiff is free from negligence, meaning the injury was not attributable to him.

Res ipsa loquitur does not change the burden of proof or create a presumption of negligence. A successful res ipsa showing amounts to a prima facie case, which will preclude the defendant from being awarded a directed verdict. However, if the defendant rebuts the res ipsa showing with evidence that he did exercise due care, it has the same effect as in all other cases. In that scenario, the jury may either find that the defendant's evidence overcomes the plaintiff's res ipsa showing and decline to infer liability, or it may reject the defendant's evidence and draw the permissible inference of negligence, finding for the plaintiff. Even if the defendant rests without offering evidence, the jury may still elect not to infer negligence.

A motion to dismiss may be granted when the facts, as viewed in favor of the plaintiff, do not present a claim upon which relief can be granted.

C is correct. The court should deny the airline's motion to dismiss because the facts, when viewed in favor of the traveler's legal representative, do present a claim upon which relief can be granted. The evidence regarding the crash allows for an inference of the airline's negligence under res ipsa loquitur. The fact that the commercial aircraft, owned and operated by the airline, crashed into a mountain on a day where the weather was good, killing all the passengers, is enough to support an inference that the airline was probably negligent. The airline was in exclusive control of the instrumentality and there is no evidence that the traveler was negligent. As such, the trier of fact may infer negligence based on this showing, and the airline's motion to dismiss should be denied. Note: The jury may, but is not required to infer negligence following a res ipsa showing, which does not create a presumption of negligence or shift the burden of proof.

A is incorrect. The fact that the airline had exclusive control of the instrumentality and that it crashed on a clear day is sufficient for the trier of fact to infer that the airline was negligent. The legal representative was not required to show evidence regarding the cause of the crash. The court, viewing the facts in favor of the plaintiff, could infer that negligence occurred, which presents a claim upon which relief can be granted.

B is incorrect. The airline has the option to respond in its own defense by showing proof that the cause of the crash was mechanical, beyond its control. Such a showing may defeat an inference of negligence in the eyes of the trier of fact. However, the traveler's representative is not required to prove what caused the crash in a situation where negligence may be inferred. The inference alone is enough to present a claim upon which relief can be granted, which is why the motion should be denied.

D is incorrect. This answer reaches the correct answer with the wrong reasoning. The motion should be denied, but not because common carriers are subject to strict liability. They are subject to a higher standard of care as it relates to passengers, but not strict liability. Nevertheless, the motion should be denied because there is sufficient evidence upon which relief may be granted for the legal representative under res ipsa loquitur, as explained above.