## Facts

- A hand grenade exploded in a Honolulu restaurant parking lot on June 1, 1985, injuring Aaron K. Akiona, Adam Baker, and Edward W. Moore III.
- The grenade was thrown by Dennis Keliinui Kaululaau, who was convicted of attempted murder.
- The grenade was traced to a lot manufactured for the United States and shipped overseas and to Hawaii between 1967 and 1969.
- The government had no records tracing the grenade after shipment and followed a policy of destroying certain grenade-related records two years after disposal.
- Kaululaau provided no information about how he obtained the grenade; the parties stipulated he possessed it unlawfully and without the government’s knowledge or consent.
- The plaintiffs sued the United States under the Federal Tort Claims Act (FTCA), alleging negligent safeguarding of military ordnance.
- After a bench trial on stipulated facts and testimony, the district court found the government negligent, relying on res ipsa loquitur and shifting the burden based on record destruction, and awarded damages.

## Issues

1. Whether, under Hawaii tort law applicable through the FTCA, res ipsa loquitur permitted an inference that the government negligently allowed the grenade to reach a private wrongdoer.
2. Whether routine destruction of ordnance records justified shifting the burden of proof on negligence (or causation) to the government.

## Decision

- The Ninth Circuit reversed the judgment as to liability.
- Res ipsa loquitur was unavailable because the grenade was not shown to be within the government’s exclusive control in a way supporting a “more likely than not” inference of government negligence.
- The district court erred by shifting the burden of proof to the government based on routine record destruction.
- With res ipsa and burden shifting rejected, the record was insufficient to establish any negligent government act or omission that proximately caused the injuries.
- Because liability was reversed, the court did not reach the plaintiffs’ cross-appeal regarding damages.

## Legal Principles

- Under the FTCA, liability is determined by the tort law of the place where the act or omission occurred; here, Hawaii law governed.
- Under Hawaii law, res ipsa loquitur requires: (1) an event that ordinarily does not occur absent negligence, (2) causation by an instrumentality within the defendant’s exclusive control, and (3) no voluntary action or contribution by the plaintiff.
- Res ipsa loquitur permits, but does not compel, an inference of negligence; the inference must make defendant negligence more probable than other plausible causes.
- The plaintiff bears the burden of proving negligence and causation; res ipsa does not shift the ultimate burden of persuasion.
- Routine, policy-based destruction of records does not, without more, shift the burden of proof on negligence under Hawaii law in an FTCA case.

## Conclusion

The Ninth Circuit held that the plaintiffs could not use res ipsa loquitur or a record-destruction-based burden shift to prove FTCA negligence where the grenade’s departure from government custody and subsequent chain of possession were unknown, and it reversed the liability judgment for lack of legally sufficient proof.


Akiona v. United States, 938 F.2d 158 (9th Cir. 1991)