Akiona v. United States

United States Court of Appeals for the Ninth Circuit · 1991 · Torts

938 F.2d 158 (9th Cir. 1991)

Updated July 23, 2026

Tortsnegligenceexclusive controlburden shiftingspoliationHawaii lawFTCAcircumstantial evidence

Facts

A hand grenade exploded in a Honolulu restaurant parking lot after Dennis Kaululaau threw it, injuring the plaintiffs. The grenade came from one of two lots manufactured for the United States and shipped between 1967 and 1969 to Iowa, Japan, Germany, and Hawaii, but the government had no records showing what happened to the grenade after shipment because it destroyed grenade records two years after disposition. The parties stipulated that Kaululaau possessed the grenade unlawfully and without the government's knowledge or consent. Because no one knew how Kaululaau obtained the grenade, plaintiffs offered no direct evidence of negligent handling by the government.

Issue

Could the district court infer the government's negligence under Hawaii's res ipsa loquitur doctrine, or shift the burden of proof to the government because it destroyed grenade records, when the plaintiffs could not show how the grenade left government hands or that the records were destroyed with notice of their relevance?

Rule

Under Hawaii law, res ipsa loquitur applies only when the thing causing injury was under the defendant's exclusive control and management at the time of the alleged negligence and the occurrence is of a kind that ordinarily does not happen if due care is exercised. An adverse inference or burden shifting from destruction of evidence requires at least notice that the destroyed material was potentially relevant; absent relevance, notice, or bad faith, destruction pursuant to routine policy does not justify shifting the burden of proof.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, Lena Ortiz was injured when a flare gun fired by an unknown trespasser exploded near a marina café. The flare gun had been manufactured for the Coast Guard fifteen years earlier, but shipment records show units from that lot were distributed to Alaska, Guam, and private salvage contractors, and no one knows how the trespasser obtained this one.

If Lena sues the United States under state negligence law and relies solely on res ipsa loquitur to prove breach, which is the best argument against applying the doctrine?

Explanation. Under the majority rule, res ipsa loquitur requires proof that the injury-producing thing was under the defendant's control and management at the time of the alleged negligence. Initial possession is not enough. Where the item may have been transferred elsewhere or left government hands long before the injury, exclusive control is not shown, so res ipsa cannot establish breach.