RES IPSA LOQUITUR

"the thing speaks for itself"

Res Ipsa Loquitur

is the process of determining negligence and reaching a verdict

for the obvious details.

3 Conditions required:

1. The injury was of such nature that it would not normally occur unless there

was a negligent act;

2. That the injury was caused by an agency within the control of the defendant; (exclusive control)

3. That the plaintiff did not engage in any manner that would tend to bring

about the injury.(plaintiff did not contribute)

3 conditions required:

1. negligent act2. exclusive control3. plaintiff did not contribute

Invoking Res Ipsa Loquitur

Who Gets the Blame

Examples of res ipsa loquitur, not all of which can be assumed to apply today

or in all jurisdictions, but which illustrate the doctrine:

1. Getting hit by a rock which flies off a passing dump truck;

2.While under anesthetic, Isabel Patient's nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage.

3. A ship in motion collides with an anchored  ship;

4. Damages occasioned by the collision of two trains of a same railway;

5. Hit or injured in an attack by a known-to-be vicious domestic dog;

6. A load of bricks on the roof of a building being constructed by Highrise Construction Co. falls and injures Paul

Pedestrian below

These events imputes negligence (res ipsa loquitur) and can only be defeated

if the defendant can show that the event was a total and inevitable

accident.

Elements

Exclusive control In some cases a closed group of people may be held

in breach of a duty of care under the rule of Res Ipsa Loquitur. In Ybarra v. Spangard, a patient undergoing surgery experienced back complications as a result of the surgery, but it could not be determined exactly which member of the surgical team had breached his or her duty, and so it was held that they had all breached, because it was certain that at least one of them was the only person who was in exclusive control of the instrumentality of harm.

Plaintiff did not contributeIn jurisdictions that employ this less rigid

formulation of exclusive control, this element subsumes the element that the plaintiff did not contribute to his injury.

Also it is notable that contributory negligence is, in modern case law, compared to the injury caused by the other. For example, if the negligence of the other is 95% of the cause of the plaintiff's injury, and the plaintiff is 5% responsible, then the plaintiff's slight fault cannot negate the negligence of the other.

This new type of split liability is commonly called comparative negligence. As a fictitious example:

John Doe is injured when an elevator he has entered plunges several floors and stops abruptly.

Jane's Corporation built, and is responsible for maintaining, the elevator.Doe sues Jane, and during the proceedings, Jane claims that Doe's

complaint should be dismissed because he has never proved, or for that matter even offered, a theory as to why the elevator functioned incorrectly. Therefore, argues Jane, there is no evidence that they

were at fault.The court holds that Doe does not have to prove anything beyond the fall

itself. The elevator evidently malfunctioned (it was not intended to fall nor is that

a proper function of a correctly functioning elevator)Jane was responsible for the elevator in every respect

So Jane's Corporation is responsible for the fall.The thing speaks for itself: no further explanation is needed to establish the

prima facie case.

Contrast to Prima facie

Res ipsa loquitur is often confused with prima facie ("at first sight"), the common law doctrine that a party must show some minimum amount

of evidence before a trial is worthwhile. The difference between the two is that prima facie is a term meaning there is enough evidence

for there to be a case to answer. Res ipsa loquitur means that because the facts are so

obvious, a party need explain no more.

Typical in medical malpracticeRes ipsa loquitur often arises in the "scalpel left

behind" variety of case. For example, a person goes to a doctor with abdominal pains after having his appendix removed. X-rays show the patient has a metal object the size and shape of a scalpel in his abdomen. It requires no further explanation to show the surgeon who removed the appendix was negligent, as there is no legitimate reason for a doctor to leave a scalpel in a body at the end of an appendectomy.

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