Welcome back to Ask a Lawyer, wherein I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below.

My friend recently rolled and totaled her SUV while swerving to avoid a couch sitting out on the freeway. In a discussion, a few of my friends suggested that the police should find the person who owns the couch, and that person should be responsible financially for any damages. I countered that there’s way too many unknowns to pin the responsibility solely on the owner of the couch. They really dug their heels in and responded that the owner of any furniture that falls off a vehicle and causes an accident is solely and entirely responsible for the accident.

We’re pretty divided on this, so any insight would be much appreciated.

I was recently driving next to a pickup truck on the freeway. One end of the familiar silhouette of an IKEA Ektorp couch was resting on top of the truck’s cab. As the freeway grade suddenly changed, the upper end of the couch began to rise up. Sensing a Final Destination moment, I passed as fast as possible. The couch then took glorious flight, soaring like a Rubenesque upholstered angel, flipping a few times in the air, and then skidding to a stop on the side of the freeway on all four legs. The point of this story is this: People make fun of IKEA, but that couch handled a 75-mile-per-hour gymnastics routine with more grace and less damage than Kerri Strug. That’s quality.

Unlike in my anecdote, your friend’s freeway couch caused some major damage, both by totaling an SUV and causing a schism in your friendship circle. It’s a good thing your friends are wrong. Let’s walk through the possibilities until we get to the responsible party. I don’t know where you are, so we’ll look at a mish-mash of state laws.

Should The Police Be Looking For The Couch’s Owner?

Most states have laws about transporting things in vehicles safely. But statutes generally don’t discuss ownership of the couch—they deal only with who is transporting the couch. What if the owner of the couch found the highest-rated couch-refurbisher on Yelp (3.5 stars at 368 reviews—not too shabby), who in turn used a third-party contractor to transport the couch? Would the owner of the couch then be responsible for the actions of a third party’s third party? Probably not. It would be different if the owner was evil and specifically paid someone else to drag the couch onto a busy highway out of spite for people driving cars—that would be an intentional criminal and tortious act, conspiracy to cause mayhem by way of couchicide.

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So, if someone did break a law, the police should be looking for the party that loaded and transported the couch—it’s not ownership that the law deals with, it’s the safe loading and transportation that’s relevant. Further, unless this caused some serious damage or injury, the cops aren’t going to waste time searching for the transporter of an errant airborne couch—it’s been estimated that road debris causes up to 25,000 accidents a year in the United States.

So that’s it as far as your argument with your friends. But I want to get down to who your other friend—the one who flipped her SUV—can pursue in a civil action.

The Thing Speaks For Itself

Let’s assume your friend finds the driver of the vehicle that was carrying the couch—perhaps a good samaritan looped back around because he caught the whole thing on his dash cam. Let’s also assume that your friend didn’t have adequate insurance and is looking to sue the other driver based on negligence. Normally, your friend would have to affirmatively prove that the driver was negligent, which could be tricky once the defendant has left the scene in his vehicle.

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In situations like this, though, there’s a sweet legal tool we can use: Res ipsa loquitur, or “the thing speaks for itself.” It basically means that under normal conditions, absent negligence, things like barrels of flour don’t crash down on the heads of people walking by a warehouse, newborn babies aren’t switched in a hospital right after birth, and elevators don’t suddenly plummet to the ground. That first example with the flour was the first-ever case of res ipsa loquitur, as stated by the ever-quotable William Prosser: “In the year 1863 a barrel of flour rolled out of the window of an English warehouse and into the lives of all tort lawyers.”

When your friend sues the other driver for negligence with res ipsa loquitur as a basis of evidence, she shifts the burden of proof from her to the other person, because (i) couches do not usually fly onto roadways without negligence, (ii) the other driver was the only person in control of the couch at the time, and (iii) your friend wasn’t negligent in hitting the couch or otherwise contributing to the couch’s final resting place. Generally, this creates enough circumstantial evidence to infer negligence. It’s not 100 percent, but it’s a big boost to her. “In this sense, res ipsa is an information-forcing evidentiary doctrine rather than a substantive theory of liability,” says our go-to tort scholar, David DePianto, assistant professor of law at SMU. “It doesn’t change what the plaintiff has to prove, but it puts the ball in the defendant’s court to produce specific information that the plaintiff could not initially produce, and which only the defendant possesses.”

But it’s also rebuttable, meaning that the other driver could demonstrate that he wasn’t negligent because, say, the brand-new straps used to tie down the couch were, despite thorough inspection beforehand, defective—which means the manufacturer of the straps is actually at fault.

Going After The Man

What if the dash cam didn’t catch the license plate of the couch-bearing vehicle, but did clearly capture audio of the good samaritan notifying the Highway Patrol by phone that there was a couch on the road? And what if the couch stayed there for hours, being batted around like a never-ending game of Couch Pong? Assuming there’s a duty of government—or one of its agencies—to keep highways safe and clear (there generally is), and especially long after it’s been notified, can you sue the government? Mostly no. In most states, government agencies can’t easily be sued thanks to an aptly named doctrine of sovereign immunity, not to be confused with “diplomatic immunityyyyyyyy,” a doctrine thoroughly expounded on in Lethal Weapon 2.

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However, in many cases, sovereign immunity doesn’t apply in cases of gross negligence. The distinction between negligence and gross negligence is pretty much the difference between “oops” and “holy fucking shit I can’t believe we fucked up that bad.” Is ignoring a couch-cleanup request mere negligence, or is it gross negligence? That’s going to be a question for the judge or jury during the pleading process or in trial, subject to lots of precedent.

Final Answer

The most practical answer here is insurance. Everyone should have car insurance that exceeds the measly state car insurance mandate (usually just liability covering another party). This isn’t like that friend of yours that harps on you once a year for not having renter’s insurance (which you totally should). It’s cheap, and you’ll be happy when you need it—the odds of getting into a vehicular accident are good, and the financial and physical stakes are high. Based on my discussions with a few insurance experts, depending on the scenario (whether the couch-dropper’s identity was ascertainable, how long the couch had been sitting there, whether your friend could have avoided hitting the couch, etc.), the couch incident would be covered under various pieces of a policy—liability, collision, comprehensive—so best to have your bases covered.

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What should be really dividing you and your friends is not some asinine theory that the owner of something is responsible for it at all times, but what the difference is between a couch and a sofa. I’ve lost a few friends over that one.


Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter. I really like people I quote here, but that doesn’t mean I endorse them, because ... lawyer. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.

Art by Sam Woolley.

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