Thursday, July 23, 2026
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Court of Appeal:
Verdict for L.A. City Revived in Case Over Less-Lethal Weapon
Opinion Says Judge Erred in Ordering New Trial, After Jury Found That Defendant Was Not Negligent in Care of Faulty Tactical Launcher Used on Protestor, Based on Misconception of Res Ipsa Loquitur
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal held yesterday that a trial judge erred in ordering a new trial after a jury found for the City of Los Angeles in a case involving allegations that its police force negligently maintained a less-lethal tactical launcher—which was found to have a problem with its targeting system after a protestor was hit just below the eye, causing vision impairment—based on an erroneous understanding of res ipsa loquitur.
The jury was instructed on the doctrine during the underlying trial, having been advised that the plaintiff may prove his case by showing that the harm would not have happened “unless someone was negligent,” that the harm was caused by something in the exclusive control of the defendant, and that the injured party did not contribute to the adverse event.
After a jury ruled for the city in 2022, then-Los Angeles Superior Court Judge Mark A. Borenstein (now retired) granted the plaintiff’s motion for a new trial, reasoning that the jury should have found the city negligent on a res ipsa loquitur theory and its contrary finding was not supported by the evidence.
Yesterday’s unpublished opinion, written by Justice Natalie P. Stone and joined in by Presiding Justice Gonzalo C. Martinez and Justice Gail Ruderman Feuer, declares:
“[W]e reverse the new trial order and reinstate the jury’s verdict as to the City because the trial court’s ruling was based on erroneous legal principles. The trial court erroneously determined the presumption of negligence under res ipsa loquitor principles was unrebutted, despite evidence proffered by the City tending to show it was not negligent or the proximate cause of Washington’s harm.”
Confrontation With Officer
The question arose after Los Angeles Police Department Officer Eric Olive confronted Edmon Washington on Aug. 16, 2016, following a protest in Inglewood at which the suspect had reportedly been seen carrying an assault rifle. After a seven-minute standoff during which Washington purportedly refused to comply with orders to get on the ground, Olive shot a “less lethal” foam or sponge round delivered by a 40-millimeter launcher.
Olive testified that he aimed at the suspect’s abdomen, and audio recordings of the incident revealed that he exclaimed at the scene that the shot “went high.” Washington filed a complaint against Olive and the city in federal court in 2017, asserting claims under 42 U.S.C. §1983 as well as state law negligence causes of action.
After District Court Judge Percy Anderson of the Central District of California granted a defense motion for summary judgment on the federal claim and declined to exercise supplemental jurisdiction over the other causes of action, the plaintiff filed a complaint in state court in 2018. He asserted that the city “negligently acquired, inspected, maintained, and/or tested” the launcher.
At trial, Officer Boyan Brkic, who serves as an armorer for the department, testified that the weapons were tested prior to being approved for field use and employees “were told not to manipulate the sighting system.” Following an hour of deliberation, the jury found in favor of both defendants, and a defense judgment was entered.
Washington then moved for judgment notwithstanding the verdict (“JNOV”) and a new trial, arguing that he had established the three conditions of the res ipsa loquitur presumption and no evidence rebutted the city’s liability. In September 2022, Borenstein denied the JNOV motion but granted the request for a new trial as to the city.
Res Ipsa Loquitur
Stone noted that res ipsa loquitur “is defined by statute as ‘a presumption affecting the burden of producing evidence,’ ” and that case law has established that a plaintiff seeking to invoke the doctrine must produce evidence supporting the three conditions set forth in the trial court’s instruction. If those conditions are met, the burden shifts to the defendant to prove a lack of negligence or proximate cause.
The jurist pointed out that Borenstein determined that the jury was incorrectly instructed on the doctrine because of the addition of an advisement that specified:
“If you decide that Plaintiff Edmon Washington proved all of these three things, you may, but are not required to, find that Defendant City of Los Angeles was negligent or that Defendant City of Los Angeles’s negligence was a substantial factor in causing Plaintiff Edmond Washington’s harm, or both.”
Rejecting Borenstein’s view of instructional error, Stone opined:
“[T]he jury was correctly instructed on the res ipsa loquitur doctrine, including that it was not bound by a presumption of negligence. This part of the instruction was proper because the City presented evidence to rebut the presumption. In turn, the presumptive effect of the doctrine disappeared….The trial court erred in disregarding this operation of the doctrine and applying the presumption notwithstanding the City’s rebutting evidence.”
She added that, “in misapplying the applicable legal principles, the trial court abused its discretion in granting a new trial on the ground of insufficient evidence” and declared:
“The grant of Washington’s motion for new trial as to the City is reversed. On remand, the trial court shall reinstate the judgment in full.”
The case is Washington v. City of Los Angeles, B324208.
Brian T. Dunn of mid-Wilshire office of The Cochran Firm California represented the plaintiff and Deputy City Attorneys Shaun Dabby Jacobs and Merete Rietveld acted for the defendant.
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