¶49
Becker, J.(concurring) — I agree that the court did not err in refusing to give a separate res ipsa loquitur instruction. To understand why, it is helpful to look at the instruction the plaintiff proposed, which is found in Washington’s pattern instructions. The instruction is an extension of the routine instruction on circumstantial evidence. If given, it does not require an inference of negligence. It does, however, permit the jury to find that the injury is of a type that would not have occurred if the defendant was using ordinary care under the circumstances. If so, the jury may infer negligence from the circumstances without additional proof that the defendant failed to use ordinary care:
Evidence may be either direct or circumstantial. Direct evidence is that given by a witness who testifies concerning facts which the witness has directly observed or perceived through the senses. Circumstantial evidence is evidence of facts or circumstances from which the existence or nonexistence of other facts may be reasonably inferred from common experience. The law makes no distinction between the weight to be given either direct or circumstantial evidence. One is not necessarily more or less valuable than the other.
It is for you to determine whether the circumstances are of such a character as to justify an inference that the injury or damage would not have occurred if ordinary care had been exercised by the defendant.
When an instrumentality which produces injury or damage is under the control of a defendant at the time of injury or damage to minor plaintiff and the injury or damage which occurred would ordinarily have not resulted if the defendant had used *529ordinary care, then, in the absence of satisfactory explanation, you may infer, but you are not required to infer, that the defendant was negligent.[45]
¶50 The trial court in this case did give the pattern instruction on circumstantial evidence, 6 Washington Pattern Jury Instructions: Civil (WPI) 1.03 (5th ed. 2005). By refusing to give two additional paragraphs found in WPI 22.01, the trial court decided as a matter of law that letting go of the bat, under the circumstances, could have happened without the teacher being negligent. While the wording of the instruction sounds as if this assessment is a factual matter that should be left to the jury, it is not an instruction to be routinely given. The court exercises substantial control to assure that the doctrine of res ipsa will be “sparingly applied, in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential.” Morner v. Union Pac. R.R. Co., 31 Wn.2d 282, 293, 196 P.2d 744 (1948).
¶51 Historically, the situation in which the court will spare the plaintiff the necessity of proving specific acts of negligence is when evidence of the cause of the injury is not realistically accessible to the injured person, but is available to the defendant. Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003). The quintessential example is Byrne v. Boadle, 159 Eng. Rep. 299 (1863). In that case, a barrel of flour rolled out of a window in defendant’s warehouse onto the plaintiff, who was walking on the public street below and was knocked unconscious by the blow. No one who witnessed the event could say how the barrel got loose. Plaintiff alleged that the defendant’s employees were engaged in trying to lower the barrel, but was unable to prove it. The court held the occurrence of the incident itself was evidence of negligence: *530The learned counsel was quite right in saying that there are many accidents from which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule that in no case can presumption of negligence arise from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly ascertain from what cause it occurred! It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him, I think the accident alone would be prima facie evidence of negligence. Or if an article calculated to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them. The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the controul of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.
Byrne, 159 Eng. Rep. at 301.
f52 This case is unlike Byrne v. Boadle because the events leading up to the injury with the piñata bat occurred out in the open for all to see. Whatever negligence there may have been occurred in plain view of the plaintiff and other witnesses. There was no imbalance of knowledge between defendant and plaintiff as to how the injury happened. The plaintiff was not precluded from arguing, and in fact did argue, that the jury could infer negligence *531from the circumstances. From the simple fact that the teacher lost her grip on the piñata bat while surrounded by a group of first graders, the jury might well have concluded that the teacher was not exercising ordinary care, using the routine set of instructions that were given. In such a situation justice does not demand that the plaintiff’s duty to prove negligence be lightened by allowing the res ipsa loquitur instruction.
1 Clerk’s Papers at 122 (emphasis added). This is 6 Washington Pattern Jury Instruction: Civil (WPI) 22.01 (5th ed. 2005), Res Ipsa Loquitur—Inference of Negligence. The first paragraph of the instruction is the same as WPI 1.03, Direct and Circumstantial Evidence.