Tort Law: Res Ipsa Loquitur
Res Ipsa Loquitur is latin for “the thing speaks for itself.” Though it is seldom used today, due to scientific advances, res ipsa loquitur is a common law theory of evidence used in torts to help a plaintiff establish proof that a defendant was unreasonable in his or her conduct. Res ipsa loquitur allows a plaintiff to bring suit if a harm was probably caused by negligence and the defendant was probably the culpable party. In civil actions, which use the preponderance of evidence threshold, probably means >50% (more likely than not). Essentially, res ipsa loquitur is a very powerful form of circumstantial evidence.
Generally speaking, for res ipsa loquitur to apply to cases of negligence, the following three elements must be met:
- The accident must be of a kind which ordinarily does not occur int he absence of another’s negligence; inference of negligence
The plaintiff’s injury must be of a type that does not ordinarily occur unless someone has been negligent. This requirement, which is the inference of negligence, allows res ipsa to be applied to a wide variety of situations, such as the falling of elevators, the presence of foreign materials in packaged goods, and more. Although many of the cases involve freakish and attenuated situations; ordinary events, such as where a passenger is injured when a vehicle stops abruptly, will also warrant the application of res ipsa.
Commercial air travel has become so safe in recent years that planes engaged in regularly scheduled commercial flights generally do not crash unless someone has been negligent. Vehicular accidents caused by a sudden loss of control, such as a car suddenly swerving off the road or a truck skidding on a slippery road and crossing into the wrong lane of traffic, justify the conclusion that such an event would not normally occur except for someone’s negligence.
Expert testimony is all but required when proving negligence using res ipsa loquitur. Such testimony is usually presented in cases of professional negligence, such as medical malpractice. In these cases, an expert witness can testify directly in regard to the inferred fact itself. For example an expert can testify that the plaintiff’s injury would not have occurred but for doctor’s negligence.
- The accident must have been caused by an agency or instrumentality within the exclusive control of the defendant; exclusive control
The plaintiff’s injury or damage must have been caused by an instrumentality or condition that was within the exclusive control of the defendant. Some courts interpret this requirement to mean that exclusive control or management must have existed at the time of the injury.
Since there must be exclusive control by the defendant, res ipsa cannot be used against multiple defendants in a negligence case where the plaintiff claims he has been injured by the negligence of another. For example, a pedestrian is injured when he is struck by a car that had just collided with another vehicle. The pedestrian institutes a negligence action against one driver, and seeks to have res ipsa applied to his case. An inference of negligence does not arise from the mere fact of the collision, since neither driver is in exclusive control of the situation. If, however, one driver is cleared of fault by some specific evidence, the jury is justified in inferring that the injury was the result of the other driver’s negligence.
The requirement of exclusive control by the defendant is not applied in cases involving vicarious liability, or shared responsibility for the same instrumentality or condition. The requirement of exclusive control by a defendant of the instrumentality causing injury does not mean that only a single entity has control. Where two or more defendants are acting jointly, the doctrine of res ipsa can be applied to establish their negligence.
- The accident must not be due to any voluntary action by the plaintiff; the plaintiff’s actions
The event in question must not have been attributable to any cause for which the plaintiff is responsible. The plaintiff must not have done anything that significantly contributed to the accident that caused the injury.
**Much of the above information can be found at, and has been reproduced from Res Ipsa Loquitur – Elements
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