The opinion of the Court was delivered by
Pashman, J.These negligence-products liability actions had their inception in a surgery performed in 1967 on the premises of defendant St. James Hospital (Hospital). Plaintiff was undergoing a laminectomy, a back operation, performed by defendant Dr. Somberg. During the course of the procedure, the tip or cup of an angulated pituitary rongeur, a forceps-like instrument, broke off while the tool was being manipulated in plaintiff’s spinal canal. The surgeon attempted to retrieve the metal but was unable to do so. After repeated failure in that attempt, he terminated the operation. The imbedded fragment caused medical complications and further surgical interventions were required. Plaintiff *295has suffered significant and permanent physical injury proximately caused by the rongeur fragment which lodged in his spine.
Plaintiff sued: (1) Dr. Somberg for medical malpractice, alleging that the doctor’s negligent action caused the rongeur to break: (2) St. James Hospital, alleging that-it negligently furnished Dr. Somberg with a defective surgical instrument; (3) Reinhold-Schumann, Inc. (Reinhold), the medical supply distributor which furnished the defective rongeur to the hospital, on a warranty theory, and (4) Lawton Instrument Company (Lawton), the manufacturer of the rongeur, on a strict liability in tort claim, alleging that the rongeur was a defective product. In short, plaintiff sued all who might have been liable for his injury, absent some alternative explanation such as contributory negligence.
Dr. Somberg testified that he had not examined the rongeur prior to the day of surgery. He inspected it visually when the nurse handed it to him during the operation, and manipulated its handles to make certain it was functional. The doctor stated that he did not twist the instrument, and claimed that the manner in which the instrument was inserted in plaintiff’s body precluded the possibility of twisting. He noted the absence of one of the rongeur’s cups when he withdrew the instrument from plaintiff’s spinal canal, but his efforts to retrieve the fragment proved of no avail.
Dr. Graubard, a general surgeon, testified as an expert witness for plaintiff. He stated that the rongeur was a delicate instrument, a tool not to be “used incorrectly or with excessive force or to be used against hard substances.” He claimed that a twisting of the instrument might cause it to break at the cups. Dr. Graubard stated that a “rongeur used properly and not defective would not break.”
The deposition of the operating room supervisor of defendant hospital, Sister Carmen Joseph, was read into the record. She was responsible for visually examining and *296sterilizing all instruments prior to surgery. The rongeur in question was used about five times a year, and had been used about 20 times before this operation. She did not know who had taken out the rongeur for this operation; she had not worked the day of plaintiff’s operation.
The hospital’s purchasing agent testified that the rongeur had been purchased from the distributor, Reinhold, about four years prior to plaintiff’s surgery and was received in a box bearing the name of the manufacturer, Law-ton. The owner of Reinhold testified that the rongeur was not a stock item and had to be specially ordered from Law-ton upon receipt of the hospital purchase order. The box was opened at Reinhold’s warehouse, to verify that it was a rongeur and it was then forwarded to the hospital.
Defendant Lawton called a metallurgist, a Mr. John Carroll, as an expert witness. He testified that an examination of the broken rongeur revealed neither structural defect nor faulty workmanship. He said that the examination (conducted at an optical magnification 500 times normal size) revealed a secondary crack near the main crack but he could not suggest how or when that crack formed. Mr. Carroll offered an opinion as to the cause of the instrument’s breaking: the instrument had been strained, he said, probably because of an improper "twisting” of the tool. The strain, however, could have been cumulative, over the course of several operations, and the instrument could conceivably have been cracked when handed to Dr. Somberg and broken in its normal use.
In short, when all the evidence had been presented, no theory for the cause of the rongeur’s breaking was within reasonable contemplation save for the possible negligence of Dr. Somberg in using the instrument, or the possibility that the surgeon had been given a defective instrument, which defect would be attributable to a dereliction of duty by the manufacturer, the distributor, the hospital or all of them.
*297The case was submitted to a jury ou special interrogatories, and the jury returned a finding of no cause as to each defendant. On appeal, the entire Appellate panel concurred in an order for a new trial. A majority held that the verdict represented a miscarriage of justice, and that on the facts of this ease it was clear that one of the parties was liable and the jury should have been told that it had to return a verdict against at least one of the defendants. The concurring opinion writer argued that the jury had not been properly instructed on its prerogatives to find for plaintiff; but he felt that the order for a directed verdict against an unnamed defendant was an invitation to the jury to guess which defendant was liable. Accordingly, the concurrence urged that the case be remanded for trial, and that the jury be instructed that plaintiff had made out a very strong prima facie case. Certification was granted. 63 N. J. 586 (1973).
First, we note that the suggestion in the concurring opinion that the case be sent back on “strengthened” instructions is little more than a pretext for giving plaintiff a second chance before a jury. FTeither in the Appellate Division nor before this Court has it been alleged, let alone demonstrated, that the charge did not comport with the standard charge for a “strong” prima facie case made out by res ipsa loquitur (thought to be appropriate here). Indeed, the trial judge very adequately explained to the jury that plaintiff, given all favorable inferences, could be said to have proved his case.1 See Vespe v. Di Marco, 43 N. J. 430, 439 (1964).
*298The position adopted by the Appellate Division majority seems to us substantially correct: that is, at the close of all the evidence, it was apparent that at least one of the defendants was liable for plaintiff’s injury, because no alternative theory of liability was within reasonable contemplation. Since defendants had engaged in conduct which activated legal obligations by each of them to plaintiff, the jury should have been instructed that the failure of any defendant to prove his nonculpability would trigger liability; and further, that since at least one of the defendants could not sustain his burden of proof, at least one would be liable. A no cause of action verdict against all primary and third-party defendants will be unacceptable and would work a miscarriage of justice sufficient to require a new trial. R. 2:10—1.
In the ordinary case, the law will not assist an innocent plaintiff at the expense of an innocent defendant. However, in the type of case we consider here, where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery (such as eases where foreign objects are left in the body of the patient), those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default. They must prove their nonculpability, or else risk liability for the injuries suffered.
This case resembles the ordinary medical malpractice foreign-objects case, where the patient is sewn up with a surgical tool or sponge inside him. In those cases, res ipsa loquitur is used to make out a prima facie case. Martin v. Perth Amboy General Hospital, 104 N. J. Super. 335, 342 (App. Div. 1969); Gould v. Winokur, 98 N. J. Super. 554 (Law Div. 1968), aff’d 104 N. J. Super. 329 (App. Div. *2991969), certif. den. 53 N. J. 582 (1969); Annotation, “Malpractice — Ees Ipsa Loquitur,” 82 A. L. R. 2d 1262; Annotation, “Malpractice — Foreign Object Left in Patient,” 10 A. L. R. 3d 9; cf. Williams v. Chamberlain, 316 S. W. 2d 505 (Mo. 1958) (breaking of hypodermic needle did not make out prima facie case).
The rule of evidence we set forth does not represent the doctrine of res ipsa loquitur as it has been traditionally understood. Bes ipsa loquitur is ordinarily impressed only where the injury more probably than not has resulted from negligence of the defendant, Germann v. Matriss, 55 N. J. 193 (1970), and defendant was in exclusive control of the instrument. Magner v. Beth Israel Hospital, 120 N. J. Super. 529 (App. Div. 1972), certif. den. 62 N. J. 199 (1973); Rose v. Port of New York Authority, 61 N. J. 129 (1972). The doctrine has been expanded to include, as in the instant matter, multiple defendants, Jackson v. Magnavox Corp., 116 N. J. Super. 1, 17 (App. Div. 1971) ; Ybarra v. Spangard, 25 Cal. 2d 486, 154 P. 2d 687 (Sup. Ct. 1948), although even this expansion has been criticized, see Adamson, “Medical Malpractice: Misuse of Ees Ipsa Loquitur,” 46 Minn. L. Rev. 1043 (1962); Seavey, “Ees Ipsa Loquitur: Tabula in Naufragio,” 63 Harv. L. Rev. 643 (1950). It has also been expanded to embrace cases where the negligence cause was not the only or most probable theory in the case, but where the alternate theories of liability accounted for the only possible causes of injury. Dierman v. Providence Hospital, 31 Cal. 2d 290, 188 P. 2d 12 (Sup. Ct. 1947); Burr v. Sherwin Williams Co., 258 P. 2d 58 (Cal. Dist. App. 1953), rev’d 42 Cal. 2d 682, 268 P. 2d 1041 (Sup. Ct. 1954). That is the situation in this ease, where we find negligence, strict liability in tort and breach of warranty all advanced as possible theories of liability. In such cases, defendants are required to come forward and give their evidence. The latter development represents a substantial deviation from earlier conceptions *300of res ipsa loquitur and has more accurately been called “akin to res ipsa loquitur/’ NOPCO Chem. Div. v. Blaw-Knox Co., 59 N. J. 274 (1971), or “conditional res ipsa loquitur" Quintal v. Laurel Grove Hospital, 62 Cal. 2d 154, 166, 41 Cal. Rptr. 577, 397 P. 2d 161 (Sup. Ct. 1965); cf. the dissent of Chief Justice Weintraub in Jakubowski v. Minnesota Mining and Manufacturing Co., 42 N. J. 177, 188 (1964).
In NOPCO Chem. Div. v. Blaw-Knox Co., supra, the liability for damages to a delivered product could be attributed with great probability either to the negligence of any one in a series of bailees or the breach of warranty of the seller. The Court stated that when several defendants individually owe plaintiff a duty, and all might have caused his loss and have superior knowledge of the occurrence, they all are bound to come forward and give an account of what happened. In that case, the application of res ipsa loquitur was thought to call for an explanatory rather than an exculpatory account, which would be sufficient to meet defendant’s burden, according to the traditional rule. Kahalili v. Rosecliff Realty, Inc., 26 N. J. 595, 66 A. L. R. 2d 680 (1958). See generally, Kimball, “Res Ipsa Loquitur in Suits Against Multiple Defendants,” 34 Alb. L. Rev. 106 (1969); Dierman v. Providence Hospital, supra, 188 P. 2d at 15 (dissenting opinion).
In NOPCO, however, plaintiff is still made to bear the burden of proof vis-a-vis each defendant, and, it was upon such instruction that the present case was submitted to the jury. We now hold that a mere shift in the burden of going-forward, as adopted in NOPCO, is insufficient. Por this particular type of case, an equitable alignment of duties owed plaintiff requires that not only the burden of going forward shift to defendants, but the actual burden of proof as well. Since at least one primary or third-party defendant must inevitably fail to meet his burden, a verdict must be returned for the plaintiff.
*301The California cases have taken that turn despite some language to the contrary, and defendants have been required to make: “an affirmative showing [1] of a definite cause for the accident in which cause no element of negligence on the part of the defendant inheres; or (2) of such care in all possible respects as necessarily to lead to the conclusion that the accident could not have happened from want of care, but must have been due to some unpreventable cause, although the exact cause is unknown,” Dierman v. Providence Hospital, supra, 188 P. 2d at 15, quoting Bourguignon v. Peninsular Ry. Co., 40 Cal. App. 689, 694, 695, 181 P. 669, 671 (1919). Cf. Justice Traynor’s dissent in that case argues that the majority’s rule could make plaintiff’s medical attendants insurers of his safety. We accept the approach of the Dierman majority, which. reversed a no cause verdict against plaintiff, and remanded for trial, apparently upon new instructions that defendants in this type of medical malpractice case should be made to exculpate themselves where clearly plaintiff was not at fault. Cf. Clark v. Gibbons, 66 Cal. 2d 399, 58 Cal. Rptr. 125, 426 P. 2d 525 (1967); Raber v. Tumin, 36 Cal. 2d 654, 664, 226 P. 2d 574, 580 (1951) (dissenting opinion); see Louisell and Williams, “Res Ipsa Loquitur — Its Future in Medical Malpractice Cases,” 48 Cal. L. Rev. 252, 256 (1960), suggesting that in unconscious-patients cases a res ipsas-like charge ought to shift the actual burden of proof. At least one writer has argued that the burden of proof rule should be adopted on the basis of an explicit recognition that the risk of unexplained injuries in these unconscious-patient situations should lie with those who were in custody of the body or who owed a duty to the patient (e. g., as the manufacturers of surgical tools). Thode, “The Unconscious Patient: Who Should Bear The Risk of Unexplained Injuries to A Healthy Part of His Body?,” 1969 Utah L. Rev. 1. See Seavey, “Res Ipsa Loquitur: Tabula in Naufragio,” supra, 63 Harv. L. Rev. at 646-647.
*302The imposition of the burden of proof upon multiple defendants, even though only one could have caused the injury, is no novelty to the law, as where all defendants have been clearly negligent. Summers v. Tice, 33 Cal. 2d 80, 199 P. 2d 1 (1948). As against multiple defendants where there is no evidence as to where culpability lies, the rule is not generally available, according to Prosser, because it might impose an equal hardship on an innocent defendant as on an innocent plaintiff. Prosser notes exceptional special eases, as where defendant owes a special responsibility to plaintiff, and in those instances the burden of proof can in fact be shifted to defendants. Prosser, Torts (4 ed. 1973), pp. 243-244, 231, 223. The facts of this case disclose just such a special responsibility, and require a shifting of the burden of proof to defendants.
We hold that in a situation like this, the burden of proof in fact does shift to defendants. All those in custody of that patient or who owed him a duty, as here, the manufacturer and the distributor, should be called forward and should be made to prove their freedom from liability.2 The rule would have no application except in those instances where the injury lay outside the ambit of the surgical procedure in question; for example, an injury to an organ, when that organ was itself the object of medical attention, would not by itself make out a prima facie case for malpractice or shift the burden of proof to defendants. Farber v. Olkon, 40 Cal. 2d 503, 254 P. 2d 520, 524 (1953).
*303Further, we note that at the close of all the evidence, no reasonable suggestion had been offered that the occurrence could have arisen because of plaintiff’s contributory negligence, or some act of nature; that is, there was no explanation for the occurrence in the case save for negligence or defect on the part of someone connected with the manufacture, handling, or use of the instrument. (Any such proof would be acceptable to negative plaintiff’s prima facie case.) Since all parties had been joined who could reasonably have been connected with that negligence or defect, it was clear that one of those parties was liable, and at least one could not succeed in his proofs.3
In cases of this type, no defendant will be entitled to prevail on a motion for judgment until all the proofs have been presented to the court and jury. The judge may grant any motion bearing in mind that the plaintiff must recover a verdict against at least one defendant. Inferences and doubts at this stage are resolved in favor of the plaintiff. If only one defendant remains by reason of the court’s action, then, in fact, the judge is directing a verdict of liability against that defendant.
The holding of the Court in this matter will, according to the dissenters, remove from the judicial process “any semblance of rationality” and reduce it to “trial by lot, or by chance.” The objections which they raise, however, hardly justify this resplendently apocalyptic rhetoric.
The dissenters are concerned with the possibility that there will be cases in which a foreign object is left in the *304body of the plaintiff after surgery — a fact which bespeaks tortious conduct on the part of somebody4 — and all persons who might reasonably have been liable for the injury are before the court, but none of the parties, in fact, acted tortiously. They express dismay that in such cases, which they anticipate will be “many,” juries will be obliged to act contrary to their oaths and that liability will be imposed on wholly innocent parties.
Once stated in simple language, free of the epithets with which the dissenters have clothed it, the objection largely evaporates. Almost by definition, one or more of the defendants are liable. Identifying the responsible party is merely a matter of elimination. To instruct the jury that it must return a verdict against one or more of the defendants is simply requiring it to determine upon the evidence which defendants, if any, have exculpated themselves. For the jury under these circumstances to conclude that no defendant is liable would be a contradiction in logic. Certainly this procedure neither compels jurors to violate their oaths nor leads to random and haphazard imposition of liability as alleged by the dissent.
The dissenters also accuse the Court of deliberately and perversely ignoring the fact — known, they assert, by everyone associated with the case — that not all conceivable defendants are before the trial court. The accusation is, of course, true. Anyone with a moderately fertile imagination could conceive of other persons whose conduct might have caused the injury. Indeed, as the dissenters are at pains to note, two witnesses did speculate that another doctor might have damaged the rongeur within the preceding four years, and, while none of the witnesses or parties have thus far suggested the possibility, the Court on its own motion might note that it is also conceivable that some unknown- enemy *305of Mr. Anderson might have slipped into the hospital prior to the operation and deliberately damaged the instrument or that some unknown disgruntled employee of Rheinhold-Sehumann or Lawton Instrument might have done so.
Nevertheless, the fact remains that involvement by any person other than the defendants actually before the court below has never been asserted as anything other than pure and undisguised speculation. None of the defendants introduced any evidence to actually support the claim of responsibility by other persons; they made no effort to join additional parties.5 It would be exceedingly unjust to deny plaintiff compensation simply because an imaginative defendant can conceive of other possible parties. On the record presently before the Court, the contention of the dissent, that the Court is “visiting liability * * * upon parties who are more probably than not totally free of blame,” is, at best, an exercise in judicial hyperbole.
A wholly faultless plaintiff should not fail in his cause of action by reason of defendants who have it within their power to prove nonculpability but do not do so. See Broder, “Res Ipsa Loquitur in Medical Mal-Practice Cases,” 18 De Paul L. Rev. 431, 422—33 (1969). In this case, the balance of equities requires no less.
The judgment of the Appellate Division is hereby affirmed, and the cause remanded for trial upon instructions consonant with this opinion.
Jacobs, J., concurs in the result but votes to affirm on the majority opinion rendered in the Appellate Division.
The charge included the following:
The right of the defendants to have the plaintiff bear the required burden is a substantial one and not a mere matter of form. This burden may be sustained, however, on the basis of all of the evidence in this case and the legitimate inference to be drawn from it. And in this connection you may consider that the defendants were the only one shown to have any relationship with the pituitary rongeur which broke during the course of the operation. And you may infer *298that the breaking was attributable to dereliction on the part of one or other of the defendants in this case.
The dissent concedes the justification of a rule shifting the burden of proof as to negligence charges. Post. p. 310, fn. 5. But the dissenters in a footnote are critical of, among other things, the provision in this decision for a shift in burden where plaintiff has sued on counts of strict liability in tort and breach of warranty. This shift is applicable only in the particular factual situation involved in this type of case. In this factual pattern where such a shift is appropriate, it does not depend upon the specific theory of liability advanced by the plaintiff; in a factual situation where such a shift is not appropriate, the plaintiff cannot obtain its benefits by choosing one legal theory or another.
We note that a res ipsa charge has been denied where there are other equally probable multiple causes, but the ag'ents of those other causes were not joined; for example, where a wire in plaintiff’s body shattered, res ipsa was not available against the doctor when neither the manufacturer nor the hospital that supplied it was joined. Inouye v. Black, 238 Cal. App. 2d 31, 47 Cal. Rptr. 313, 14 A. L. R. 3d 961 (D. Ct. App. 1965) ; Crawford v. County of Sacramento, 239 Cal. App. 2d 791, 49 Cal. Rptr. 115 (D. Ct. App. 1966) ; cf. Talbot v. Dr. W. H. Groves’ Latter Day Saints Hospital, 21 Utah 2d 73, 440 P. 2d 872 (1968).
We do not consider here the special case of medical procedures which are foreseeably hazardous by the very reason of an exceptional risk that foreign objects might be left in the patient’s body.
On remand, defendants will have the opportunity to engage in discovery so as to identify possible additional defendants and will have the benefit of our liberal joinder rules. R. 4:8-1, R. 4:29-1(a), R. 4:30.