Res ipsa loquitur

Latin for ‘the thing speaks for itself.' The phrase refers to a rule of evidence whereby Negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided that (1) in the absence of negligence, the accident would not have occurred and (2) the thing that caused the injury is shown to have been under the exclusive control of the alleged wrongdoer. This shifts the burden to the defendant, who is thereby charged with introducing evidence to refute the Presumption of negligence that has been created.

A Latin phrase meaning “the thing speaks for itself.” Used in actions for injury by negligence in which the happening itself is accepted as proof.

[Latin, The thing speaks for itself.] A rebuttable presumption or inference that the defendant was negligent, which arises upon proof that the instrumentality or condition causing the injury was in the defendant's exclusive control and that the accident was one that ordinarily does not occur in the absence of negligence.

Res ipsa loquitur, or res ipsa, as it is commonly called, is really a rule of evidence, not a rule of substantive law.

Negligence is conduct that falls below the standard established by law for the protection of others against an unreasonable risk of harm. In order to prevail in a negligence action, a plaintiff must establish by a preponderance of evidence that the defendant's conduct was unreasonable in light of the particular situation and that such conduct caused the plaintiff's injury. The mere fact that an accident or an injury has occurred, with nothing more, is not evidence of negligence. There must be evidence that negligence has caused the event. Such evidence can consist of direct testimony by eyewitnesses who observed the defendant's unreasonable conduct and its injurious result.

Negligence can also be established by circumstantial evidence when no direct evidence exists. Circumstantial evidence is evidence of one recognized fact or set of facts from which the fact to be determined can be reasonably inferred, because it is the logical conclusion that can be drawn from all the known facts. For example, skid marks at the scene of an accident are circumstantial evidence that a car was driven at an excessive speed. The reasoning process must be based upon the facts offered as evidence, together with a sufficient background of human experience, to justify the conclusion. Evidence that merely suggests the possibility of negligence is insufficient, since negligence must appear more likely than not to have occurred. This inference must cover all the necessary elements of negligence: that the defendant owed the plaintiff a duty, which the defendant violated by failing to act according to the required standard of conduct, and that such negligent conduct injured the plaintiff.

Res ipsa loquitur is one form of circumstantial evidence that permits a reasonable person to surmise that the most probable cause of an accident was the defendant's negligence. This concept was first advanced in 1863 in a case in which a barrel of flour rolled out of a warehouse window and fell upon a passing pedestrian. Res ipsa loquitur was the reasonable conclusion because, under the circumstances, the defendant was probably culpable since no other explanation was likely. The concept was rapidly applied to cases involving injuries to passengers caused by carriers, such as railroads, which were required to prove they had not been negligent. Res ipsa loquitur, as it is currently applied by nearly all of the fifty states, deals with the sufficiency of circumstantial evidence and, as in some states, affects the burden of proof in negligence cases.

Elements

Three basic requirements must be satisfied before a court can submit the question of negligence to the jury under res ipsa loquitur.

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 a dead mouse in a bottle of soda, a human toe found in a wad of chewing tobacco, or a streetcar careening through a restaurant. Although many of the cases involve freakish and improbable 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.

This inference of negligence does not mean that all other possible causes of the injurious event must be eliminated. A plaintiff using res ipsa to enable her case to go to the jury must prove that the defendant's negligence is the most probable cause of her injuries. The particular nature of the defendant's negligence need not be pinpointed. For instance, where a bottle of soda explodes in a supermarket immediately after its delivery by the bottler, the injured person does not have to prove that the bottler failed to notice a defect in the bottle or that the soda was overcarbonated. It is sufficient to establish that the explosion would not have occurred unless the bottler had been negligent.

Where the inference of negligence depends upon facts beyond the common knowledge of jurors, expert testimony is necessary to furnish this information. Such testimony is usually presented in cases of professional negligence, such as medical malpractice. An expert witness can testify directly in regard to the inferred fact itself, such as when the expert testifies that the plaintiff's injury would not have occurred if the doctor had not been negligent.

Exclusive Control by the Defendant

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. This interpretation has led to harsh results. In one case, a customer sat down in a chair in a store while waiting for a salesperson. The chair collapsed and the customer was injured. The court denied recovery to the customer in her negligence action against the store because it found that the chair was not within the exclusive control of the store, but rather was under the exclusive control of the customer at the time of injury.

This application of the rule has been regarded as inflexible by many courts, since it severely restricts the type of case to which res ipsa can be applied. In response, many states prescribe that the negligence must occur while the defendant has control over the instrumentality. In the example of the exploding soda bottle, the negligence of the bottler occurred somewhere in the bottling process. The fact that the bottle was sitting on a supermarket shelf and was no longer in the immediate possession of the bottler does not prevent the reasonable conclusion that the injury resulted from the negligence of the bottler. The injured plaintiff must first show that the bottle was not cracked by mishandling after it left the plant of the bottler. This does not mean, however, that the plaintiff must account for every minute of the existence of the bottle from the time it left the plant. If the plaintiff can substantiate the fact of careful handling in general and the absence of unusual incidents, such as the deliberate tampering of the bottled goods by an unknown person, such facts would permit reasonable persons to conclude that the injury was more likely than not to have been caused by the defendant's negligence while he had exclusive control of the bottle.

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. In one case, a person was injured when an elevator in which she was riding fell very rapidly. She brought a negligence action against both the owner of the building and the elevator company that manufactured the elevator and had the maintenance service contract for the building. The plaintiff relied completely on res ipsa. The jury found for the plaintiff since a falling elevator is not the type of accident that usually occurs without negligence, so that the negligence of those in control can be inferred. The service contract between the elevator company and the building owner established the fact that they exerted joint control over the elevator. 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.

Some state courts have departed from the requirement of exclusive control and applied res ipsa loquitur against multiple defendants. In one case, while an anesthetized patient was undergoing an operation for appendicitis, he suffered a traumatic injury to his shoulder. Res ipsa was applied against all of the doctors and hospital employees connected with the operation, although not all of them were negligent. The court based its decision on the special responsibility for the plaintiff's safety undertaken by everyone concerned.

Freedom from Contributory Negligence

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. In one case, a water skier was injured when the propeller of the boat that had been towing him struck his arm as the boat was attempting to pick him up. He sued the driver and the owner of the boat for negligence, which could be found if res ipsa was applied. The plaintiff attempted to dive underwater when he saw the boat approaching him, but he was unsuccessful in escaping injury. The defendants claimed that the attempted dive caused the accident and, therefore, res ipsa was inapplicable.

The trial court accepted this argument, which was later rejected by the appellate court. The appellate court decided that the question of whether the attempted dive caused the accident should have been presented to the jury under res ipsa. It stated that a plaintiff may rely upon res ipsa loquitur even though he has participated in the events leading to the accident if the evidence excludes his conduct as the responsible cause. In light of the skier's testimony that he was about to be struck by the boat, as well as the testimony of other eyewitnesses, the jury could logically conclude that the attempted dive was not a cause of the accident.

Accessibility of Evidence

In addition to the three basic requirements, a few states apply res ipsa in negligence cases where the evidence of the facts of the event is more accessible to the defendant than to the plaintiff. In one state, for example, a plaintiff was injured when the bleacher section in which she was sitting collapsed during a basketball game under the management and supervision of the defendant high school athletic association. She sued the association for negligence under the doctrine of res ipsa. The appellate court, reviewing a verdict for the plaintiff, affirmed it because "the underlying reason for the res ipsa rule is that the chief evidence of the true cause of the injury is practically accessible to the defendant but inaccessible to the injured person."

The Effect of Res Ipsa

Res ipsa loquitur is usually used when there is no direct evidence of the defendant's negligence. The facts presented to the court must meet the three basic requirements. Once the court decides that the facts of a particular case warrant the application of res ipsa, it instructs the jury on the basic principles, but it is the function of the jury to decide the credibility and weight of the inference to be drawn from the known facts. The jury can conclude that the defendant was negligent, but the jury is not compelled to do so. Everything depends upon the particular facts of each case. An inference of negligence might be so clear that no reasonable person could fail to accept it. If the defendant offers no explanation, the court can direct a verdict for the plaintiff if the inference is so strong that reasonable jurors could not reach any other conclusion. Where the jury considers the question of negligence, it can decide that the facts do not logically lead to an inference of the defendant's negligence, even if the defendant did not offer any evidence in her defense. If the defendant presents evidence that makes it unlikely that she has acted negligently, the plaintiff will lose his case unless he can rebut the evidence, since such evidence destroys the inference of negligence created by res ipsa.

A minority of courts hold that res ipsa creates a rebuttable presumption of negligence. Unless the defendant offers sufficient evidence to contradict it, the court must direct a verdict for the plaintiff. Some states have gone as far as to shift the burden of proof to the defendant, requiring her to introduce evidence of greater weight than that of the plaintiff.

The noun has one meaning:

Meaning #1: a rule of evidence whereby the negligence of an alleged wrongdoer can be inferred from the fact that the accident happened

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v • d • e

Res ipsa loquitur is a legal term from Latin meaning, "the thing itself speaks" but is more often translated "the thing speaks for itself." It signifies that further details are unnecessary; the facts of the case are self-evident. The doctrine is applied to tort claims which, as a matter of law, do not have to be explained beyond the point where liability is established. It is most useful to plaintiffs in certain kinds of negligence case. It was first formulated in the English 1863 case Byrne v. Boadle.^[1]

Contents 1 History 2 Leading case 3 Contrast to Prima facie 4 Examples by country 4.1 Canada 4.2 Hong Kong 4.3 South Africa 4.4 United States 4.5 United Kingdom (England and Wales) 4.6 United Kingdom (Scotland) 5 In popular culture 6 References

History

Under the old common law rule, to use res ipsa loquitur in the context of negligence the plaintiff must prove that:

1. The harm would not ordinarily have occurred without someone's negligence
2. The "thing" which caused the harm was under the exclusive control of the defendant at the time of the likely negligent act
3. There must be an absence of a reasonable explanation as to how the harm occurred.

However, each jurisdiction applies its own standards to determine negligence under the doctrine of res ipsa loquitur. For example, in New York State, courts have generally held that the doctrine of res ipsa loquitur applies if, first, the accident would not occur in the absence of negligence; second, the instrumentality causing injury was within the exclusive control of the defendant; and third, the plaintiff's voluntary or involuntary actions did not contribute to the accident. Often in dispute is the second element of exclusive control. The defendant's exclusivity of control must be such that the likelihood of injury was, more likely than not, the result of the defendant's negligence. The likelihood of other possibilities do not need to be eliminated altogether but they must be so reduced that the greater probability lies with the defendant.

This is usually referred to in the "scalpel left behind" example of obvious negligence in the case of a physician, in which 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.

The "exclusive control" element has largely given way in modern cases to a less rigid formulation, where the plaintiff must prove that other responsible causes, including the conduct of the plaintiff and third parties, are sufficiently eliminated by the evidence. As a consequence, the element that the plaintiff did not contribute to his injury, is subsumed by the new formulation. 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.

Leading case

The principle of res ipsa loquitur was first put forward by Baron Pollock in Byrne v. Boadle^[1] an 1863 English case. Byrne was struck by a barrel of flour falling from a second-story window. The court's presumption was that a barrel of flour falling out of a second-story window is itself sufficient evidence of negligence:

We are all of opinion that the rule must be absolute to enter the verdict for the plaintiff. The 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 a 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.

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 control 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 show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.

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. For example:

"There is a prima facie case that the defendant is liable. They controlled the pump. The pump was left on and flooded the plaintiff's house. The plaintiff was away and had left the house in the control of the defendant. Res ipsa loquitur."

This may be termed an "open and shut case", meaning that the trial is very brief and almost a formality.

Examples by country

Canada

In Canada the doctrine of res ipsa loquitur has been largely overturned by the Supreme Court. In case of Fontaine v. British Columbia (Official Administrator) [1998] 1 S.C.R. 424 the Court rejected the use of res ipsa loquitur and instead proposed the rule that once the plaintiff has proven that the harm was under exclusive control of the defendant and that they were not contributorally negligent a tactical burden is placed on the defendant in which the judge has the discretion to infer negligence unless the defendant can produce evidence to the contrary.

Hong Kong

Some lawyers prefer to avoid the expression res ipsa loquitur (For example, Hobhouse LJ in Radcliff v. Plymouth.^[2]. But other lawyers (and judges too) still find the expression a convenient one (for example, see Bokhary PJ, a permanent judge of the Hong Kong Court of Final Appeal, in Sanfield Building Contractors Ltd v. Li Kai Cheong ^[3].

The expression res ipsa loquitur is not a doctrine but a “mode of inferential reasoning” and applies only to accidents of unknown cause^[3][4])

Res ipsa loquitur comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant's part unless he offers an acceptable explanation consistent with his having taken reasonable care.^[3]

South Africa

In South Africa (Roman Dutch Law) there is no doctrine of res ipsa loquitur, although the phrase is used regularly to mean the "facts speak for themselves." Res ipsa loquitur does not shift any burden of proof or onus from one party to the other. The phrase is merely a handy phrase used by lawyers.

United States

Most American courts recognize res ipsa loquitur. The Restatement (Third) of Torts, § 17 describes a two step process for establishing res ipsa loquitur. The first step is whether the accident is the kind that would usually be caused by negligence, and the second is whether or not the defendant had exclusive control over the instrumentality that caused the accident. If found, res ipsa loquitur creates an inference of negligence, although in most cases it does not necessarily result in a directed verdict.

The doctrine was not initially welcome in medical malpractice cases. In Gray v. Wright^[5], a seven-inch hemostat was left in Mrs. Gray during gall bladder surgery in June, 1947, and despite her chronic complaints about stomach pain over the years, the device was not found until an X-ray in March, 1953, when it was removed. Her $12,000 award was reversed by the Supreme Court of West Virginia because she was outside the statutes of limitation when she filed and could not prove that the doctor concealed knowledge of his error. This "guilty knowledge" requirement would disappear over the years, and the "discovery rule" by which statutes of limitation run from the date of discovery of the wrongdoing rather than the date of the occurrence has become the rule in most states, allowing res ipsa loquitur to take its rightful place.

Forty years later, leaving a medical device in a patient was medical malpractice, provable without expert testimony, in almost every jurisdiction.^[6] Virginia has limited the rule. "In Virginia the doctrine, if not entirely abolished, has been limited and restricted to a very material extent." It may be utilized only when the circumstances of the incident, without further proof, are such that, in the ordinary course of events, the incident could not have happened except on the theory of negligence..."^[7]

A contention of res ipsa loquitur commonly is made in cases of commercial airplane accidents. It was part of the commentary in a train collision in California in 2008: "If two trains are in the same place at the same time, someone was negligent."

In some states, the doctrine of res ipsa loquitur is also used as a method of proving the intent or mens rea element of the inchoate crime of attempt. Under the Model Penal Code, "the behavior in question is thought to corroborate the defendant's criminal purpose,"^[8] for example:

Possession of materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which serve no lawful purpose of the actor under the circumstances

—Model Penal Code^[8]

United Kingdom (England and Wales)

In English tort law, the effect of res ipsa loquitur is a strong inference in favour of the claimant that negligence has taken place. It does not however fully reverse the burden of proof (Ng Chun Pui v. Li Chuen Tat 1988)^[9].

The requirement of control is important in English law. This requirement was not satisfied in Easson v. LNE Ry [1944] 2 KB 421, where a small child fell off a train several miles after it had left the station. It was considered that the door of the train was not sufficiently under control of the railway company after the train started moving and could have been opened by somebody for whom the company was not responsible. This case was distinguished from the earlier Gee v. Metropolitan Ry^[10] where the plaintiff fell from the train immediately after it left the station, when the door through which he fell could still be considered to be fully controlled by the railway company.

The requirement that the exact cause of the accident must be unknown is illustrated by the case of Barkway v. South Wales Transport^[11]. In this case a bus veered across the road and it was known that the accident was caused by a flat tire. In this case, the plaintiff could not be assisted by res ipsa loquitur and had to go on to prove that the flat tire was caused by the transport company's negligence.

United Kingdom (Scotland)

The doctrine exists in the Scots law of delict. The leading case is that of Scott v London & Catherine Dock Co^[12]. This case laid down 3 requirements for the doctrine to apply:

1. There must be reasonable evidence of negligence
2. The circumstances must be under the direct control of the defender of his servants
3. The accident must be of such a type that would not occur without negligence.

Recent examples in Scotland are McDyer v Celtic Football Club^[13] and McQueen v The Glasgow Garden Festival 1988 Ltd^[14].

In popular culture

• "Res Ipsa Loquitur" is the slogan of the Philadelphia newspaper The Bulletin.

References

1. ^ ^{a b} Byrne v. Boadle Court of Exchequer, 2 H. & C. 722, 159 Eng. Rep. 299, 1863, http://www.safetyphoto.co.uk/subsite/case%20abcd/byrne_v_boadle.htm, retrieved on 2009-03-16 
2. ^ Ratcliffe v. Plymouth & Torbay Health Authority, 1998 
3. ^ ^{a b c} Sanfield Building Contractors Ltd v. Li Kai Cheong, 2003 
4. ^ Schellenberg v. Tunnel Holdings Pty Ltd, 2000 
5. ^ Gray v. Wright 142 W. Va. 490, 96 S.E. 2d 671, 1957 
6. ^ See Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or. App. 637, 641, 978 P.2d 429, 433 (1999); Steinkamp v. Caremark, 3 S.W.3d 191, 198-99 (Tex. Civ. App. 1999); Baumgardner v. Yusuf, 144 Cal. App. 4th 1381, 1392, 51 Cal. Rptr. 3d 1381, 1392 (2006); Fox v. Green, 161 N.C. App. 460, 465, 588 S.E. 2d 899, 904 (2003).
7. ^ Lewis v. Carpenter Co., 252 Va. 296, 477 S.E.2d 492 (1996). See Virginia Legal Doctrines.
8. ^ ^{a b} Frank Schmalleger, Criminal Law Today: An Introduction with Capstone Cases," p. 115, N. 29, citing Model Penal Code, § 5.01 (2).
9. ^ Ng Chun Pui v. Li Chuen Tat, RTR, 1988 
10. ^ Gee v. Metropolitan Ry, 1873 
11. ^ Barkway v. South Wales Transport, 1 All ER, 1950 
12. ^ =Scott v. London & Catherine Dock Co 3 H&C 596, 1865 
13. ^ McDyer v. Celtic Football Club, SC, 2000 
14. ^ McQueen v The Glasgow Garden Festival 1988 Ltd, SLT 

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